MMmmti^^ 


Professor  R.   G.   Gettell 


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X 


DEPARTMENTAL  COOPERATION 
IN  STATE  GOVERNMENT 


THE  MACMILLAN  COMPANY 

HKW  YORK    •    BOSTON   •    CHICAGO  •   DALLAS 
ATLANTA   •    SAN   FRANCISCO 

MACMILLAN  &  CO.,  Limited 

LONDON  .   BOMBAY  •    CALCUTTA 
MELBOURNE 

THE  MACMILLAN  CO.  OF  CANADA,  Ltd. 

TORONTO 


DEPARTMENTAL  COOPERATION 
IN  STATE  GOVERNMENT 


BY 

ALBERT  R.  ELLINGWOOD,  B.C.L.  (Oxon.),  Ph.D. 

ASSISTANT  PROFESSOR  OF  POLITICAL  SCIENCE 
IN  COLORADO  COLLEGE 


5Jm  f  nrk 

THE  MACMILLAN  COMPANY 

1918 

All  rights  reserved 


(S^ 


\^ 


COPnUGBT,  1918 

By  a.  R.  ELLINGWOOD 


GIFT 


)UJ=^ 


George?Banta  Pxtblishing  Company 
Menasha,  Wis. 


E3 


To 

W.A.W. 


M633385 


CONTENTS 

Pages 

Introduction ix 

Chapter  I.    The  History  of  the  Advisory  Opinion 1 

In  England 1 

In  the  United  States 30 

In  Canada 79 

In  Other  States 93 

Chapter  II.    The  Advisory  Opinion  in  Practice 96 

The  Source  of  Interrogations 96 

Nature  of  Questions 99 

Form  of  Replies 146 

Effect  of  Replies  upon  Interrogators 153 

Chapter  HE.    The  Interpretation  of  Advisory  Opinion  Clauses 161 

Chapter  IV.    Other  Forms  of  Judicial  Influence 238 

Chapter  V.    The  Place  of  the  Advisory  Opinion 248 

Appendix  I.    Text  of  Advisory  Opinion  Clauses  of  State 

Constitutions 258 

Appendix  II.    Text  of  Advisory  Opinion  Statutes  of  the 

Dominion  of  Canada  and  the  Provinces 260 

Appendix  III.    Text  of  Advisory  Opinion  Provisions  in 

Central  and  South  American  States 267 

Appendix  IV.    Table  of  Cases 269 

Appendix  V.    Bibliography 295 

Index 297 


INTRODUCTION 

During  the  last  decade  the  searchlight  of  criticism  has 
found  a  resting  place  upon  the  American  judiciary  with  in- 
creasing frequency.  The  censure  of  our  State  judicial  systems 
is  no  longer  academic;  the  thinking  citizen  body  of  this  democra- 
cy has  in  many  ways  expressed  its  conviction  that  the  courts 
were  not  giving  to  the  people  what  the  people  had  a  right  to 
expect  from  them,  that  the  judicial  system  was  inefficient. 
This  generation  has  witnessed  a  deplorable  shoirtening  of  the 
terms  of  elected  judges,  and  the  introduction  into  our  State 
constitutions  of  the  dangerous  judicial  recall  and  the  illogical 
and  indefensible  recall  of  judicial  decisions.  In  some  cases 
these  "reforms"  have  been  the  result  of  a  commendable  fear- 
lessness in  the  exercise  of  the  so-called  judicial  veto  over  im- 
constitutional  legislation.  The  legislative  trickster  has  had 
it  in  his  power  to  shift  to  judicial  shoulders  the  blame  for  the 
failure  of  legislation  demanded  by  his  constituency.  More 
and  more  have  our  judges  been  involved  in  "poHtics,"  at  the 
cost  of  a  decreased  efficiency  as  organs  of  government.  They 
have  become  too  close  to  the  people  in  one  sense;  their  vision 
no  longer  comprehends  all  the  people,  but  only  a  constituency, 
a  social  group,  or  economic  class;  as  Rousseau  would  say,  they 
express  not  the  General  Will,  but  the  will  of  a  temporary  asso- 
ciation of  individuals  within  the  state. 

Obviously  this  calls  for  correction.  In  the  exuberance  of 
our  democracy,  we  have  deluded  ourselves  into  thinking  that 
the  rule  of  the  people  in  a  free  state  means  concrete,  tangible, 
personal  participation  of  each  individual  citizen  in  the  affairs 
of  government.  We  have  lost  sight  of  the  fact  that  directing 
the  complex  affairs  of  a  large  poUtical  society  is  a  task  for 


experts,  that  the  proper  function  of  the  citizens  of  a  free  democ- 
racy is  to  choose  honest  experts  to  act  for  them  poUtically, 
and  that  in  proportion  as  the  inexpert  meddle  directly  in  govern- 
mental activities,  inefficiency  will  result.  In  the  American 
system  of  government,  all  of  this  applies  especially  to  the  judi- 
ciary. It  is,  then,  especially  important  that  we  remove  our 
judges  as  far  as  possible  from  factional  or  sectional  politics. 
They  should  be  the  impartial  and  independent  distributors 
of  justice  as  approximated  in  the  spirit  of  a  given  epoch,  fear- 
lessly representing  the  General  Will  of  the  democracy  from  which 
they  derive  their  authority. 

This,  it  must  be  admitted,  is  an  ideal,  and  is  subject  to  two 
practical  quaUfications.  In  the  first  place,  the  citizens  of  our 
States  will  not  agree  to  such  an  exaltation  of  their  judiciary 
until  they  can  be  induced  to  place  in  it  a  larger  measure  of 
confidence  than  they  do  at  present.  This  calls  not  only  for  a 
revision  of  judicial  procedure  (a  subject  which  is  beyond  the 
scope  of  the  present  discussion)  but  also  for  a  readjustment 
of  the  relations  between  the  three  departments  of  government, 
so  devised  as  to  enable  the  people  to  fix  the  responsibihty  for 
a  failure  to  carry  out  their  clear  mandates,  and  thus  make  it 
impossible  for  the  executive  and  legislative  departments  to 
saddle  the  odium  of  disobedience  upon  the  judicial.  Secondly, 
although  the  judiciary  must  not  be  trammeled  by  the  poHtical 
entanglements  of  the  other  two  departments,  neither  must  it 
be  out  of  touch  with  them.  It  is  a  fundamental  of  the  efficient 
government  of  the  future,  in  a  representative  democracy,  that 
there  shall  be  harmony  and  cooperation  between  its  component 
parts.  Just  as  the  creative  power  of  the  legislature  and  the 
administrative  resources  of  the  executive  should  be  unreservedly 
at  the  command  of  the  courts,  if  necessary  to  carry  out  their 
proper  functions,  so,  too,  the  experience  and  skill  of  the  judiciary 
should  be  at  the  service  of  the  other  departments  in  time  of 
need. 

It  is  believed  that  the  constitutional  device  which  is  de- 
scribed in  the  following  pages  will  go  far  towards  furnishing 
a  solution  of  this  difficult  problem.     It  has  been  successful 


in  the  mother-state  from  which  we  derived  the  basic  elements 
of  our  governmental  organization,  though  in  recent  times  it 
has  taken  a  peculiar  form  there,  scarcely  applicable  in  the 
United  States.  It  has  been  developed  very  successfully  in 
several  of  our  own  conmionwealths,  and  has  attained  a  clear- 
cut  definiteness  in  the  Canadian  Dominion  and  Provinces. 
On  its  record,  as  revealed  by  the  present  study,  it  is  at  least 
worthy  of  a  very  careful  consideration,  with  a  view  to  a  more 
general  incorporation  into  our  State  constitutional  systems. 
This  device  is  the  so-called  advisory  opinion.  For  the 
sake  of  the  non-professional  reader,  not  conversant  with  this 
rather  unfamiliar  chapter  in  our  constitutional  law,  a  word 
or  two  of  explanation  may  not  be  amiss.  It  has  long  been 
recognized  that  the  Anglo-Saxon  judicial  system,  based  on 
the  case-by-case  development  of  precedent,  while  valuable 
in  many  ways,  has  certain  serious  defects.  This  is  especially 
true  in  the  United  States  where  the  courts  may  declare  that 
that  which  has  the  form  of  law  is  of  no  effect  because  its  enact- 
ment has  not  been  in  conformity  with  the  constitution.  The 
very  particularism  of  the  case-system  may  bring  about  grave 
inconvenience,  if  no  one  cares  to  bring  a  "test  case"  until  after 
many  private  rights  have  arisen  under  the  legislation  in  ques- 
tion. Even  though  no  rights  have  arisen  under  a  statute, 
the  State  has  been  to  the  expense  of  enacting  it  and  securing 
a  subsequent  judicial  declaration  of  its  unconstitutionaUty. 
Again,  it  is  well  known  that  there  are  many  questions  of  a 
judicial  nature  that  can  be  brought  before  a  court  in  regular 
proceedings  with  difficulty,  if  at  all.  A  "case,"  in  a  court 
of  last  resort,  necessarily  involves  the  adjudication  of  some 
private  right,  the  settlement,  once  and  for  all,  of  a  private 
claim.  The  judgment  specifically  determines  only  the  partic- 
ular contention  then  before  the  court,  though  it  may,  of  course, 
become  a  binding  precedent  in  later  cases  of  a  similar  nature. 
It  is  binding  upon  all  the  parties  to  the  contention  who  are 
before  the  court,  and  execution  will  issue  to  carry  it  into  effect, 
if  necessary.  The  advisory  opinion,  on  the  other  hand,  is 
merely  the  advice  of  the  judges  who  compose  the  court  of  last 


resort  in  a  given  jurisdiction,  rendered  at  the  request  of  certain 
executive  or  legislative  organs.  The  privilege  of  requiring 
such  advice  may  be  restricted  in  many  ways,  for  example  by 
limiting  it  to  a  particular  kind  of  questions.  The  purpose  of 
the  scheme  is  to  enable  the  governor  or  either  house  of  the  legis- 
lature to  ascertain  the  opinions  of  the  supreme  court  justices 
upon  questions  of  a  legal  nature,  before  taking  action;  in  other 
words,  to  permit  them  to  make  the  justices  their  counsellors 
in  difficult  matters  upon  which  the  latter  are  peculiarly  qualified 
to  give  sound  advice.  It  is  not  an  adjudication  and  binds 
no  one;  the  interrogator  may  or  may  not  follow  the  opinion, 
as  he  chooses.  In  practice,  legislative  or  executive  action  has 
usually  been  in  conformity  with  advice  so  rendered  and^the 
matter  has  been  regarded  as  settled.  However,  if  an  individual 
is  aggrieved  by  the  result,  he  is  free  to  complain  to  the  courts 
in  regular  proceedings  and  the  whole  question  will  be  carefully 
considered  de  novo.  From  this  brief  explanation  it  will  appear 
that  we  have  here  a  constitutional  instrument,  the  potential 
benefit  of  which  is  not  inconsiderable,  while,  with  intelligent 
use,  its  potential  harm  is  negligible. 

In  the  following  pages,  the  writer  has  dealt  with  the  advi- 
sory opinion  from  three  standpoints.  First  of  all  its  historical 
development  in  England  and  the  United  States  has  been  traced 
at  some  length,  not  merely  as  a  matter  of  academic  interest, 
but  as  a  necessary  preUminary  to  an  adequate  understanding 
of  the  nature  of  the  institution.  This  is  followed  by  an  ex- 
position of  the  way  the  advisory  opinion  has  worked  in  the 
United  States,  and  a  statement  of  the  more  common  rules 
evolved  in  its  practice.  Finally,  an  attempt  is  made  to  estimate 
its  value  in  constitutional  systems  of  the  American  type. 


DEPARTMENTAL  COOPERATION 
IN  STATE  GOVERNMENT 


DEPARTMENTAL  COOPERA- 
TION IN  STATE  GOVERN- 
MENT 

CHAPTER    I 

THE  HISTORY  OF  THE  ADVISORY  OPINION 

A.  In  England 

The  giving  of  extra-judicial  opinion  by  English  judges  is 
a  practice  almost  as  old  as  the  legal  memory  defined  by  statute. 
Indeed,  it  is  a  natural  outgrowth  of  the  governmental  organi- 
zation of  the  twelfth,  thirteenth  and  fourteenth  centuries,  and 
both  its  existence  and  its  nature  can  be  explained  and  understood 
only  after  an  examination  of  the  evolution  of  the  EngUsh  con- 
stitution during  that  period.  In  the  Anglo-Norman  system, 
separation  of  powers  was  practically  unknown.  The  same 
state  organ  exercised  legislative,  executive  and  judicial  func- 
tions.^ The  king,  in  whom  reposed  the  sovereignty  of  the 
state,  was  not  restricted  to  unHmited  executive  activity;  he 
had  the  right  of  general  legislation  as  well,  with  the  advice 
of  the  Magnum  Concilium^  (a  group  of  ecclesiastics  and  tenants 
in  capite  who  gathered  primarily  to  pay  homage) ;  and  through 
the  curia  Regis,  presided  over  by  the  chief -justiciar,  he  dis- 
pensed such  justice  as  was  vouchsafed  his  subjects.  As  organic 
differentiation  developed,  vestiges  of  the  privilege  of  consulta- 

^Stubbs,    C.   H.,   I,   p.   366. 
^HaUam,  Mid.  Ages,  H,  p.  319. 


2  DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

tion  and  advice  enjoyed  in  the  more  centralized  form  not  un- 
naturally clung  to  the  legislative  and  administrative  bodies, 
now  thrown  upon  their  own  uninstructed  resources.  Because 
of  a  diversity  of  practice  as  well  as  of  historical  and  juridical 
considerations,  it  is  advisable  to  consider  separately:  (1)  The 
Judges  as  advisers  to  the  King  in  his  judicial  capacity.  (2) 
The  Judges  as  advisers  to  the  King  in  his  executive  capacity. 
(3)  The  Judges  as  advisers  to  the  House  of  Lords  in  its  judicial 
capacity.  (4)  The  Judges  as  advisers  to  the  House  of  Lords 
in  its  legislative  capacity. 

1.  The  Judges  as  Advisers  to  the  King  in  his  Judicial  Capa- 
city. At  the  beginning  of  the  twelfth  century,  the  important 
administrative  and  judicial  powers  were  vested  in  the  king 
and  his  curia?  This  curia  Regis  was  composed  of  the  chief- 
justiciar,^  the  chancellor,  the  steward,  the  treasurer,  the  mar- 
shal, and  other  justitiarii  appointed  by  the  king.  When  sitting 
as  a  financial  body  it  was  known  as  the  exchequer.  Within 
a  hundred  years  a  division  of  labor  became  necessary  and 
several  bodies  succeeded  to  the  duties  of  the  old  curia.  There 
was  the  Exchequer,  with  extensive  powers  of  financial  admini- 
stration as  well  as  judicial  powers  in  cases  involving  the  public 
revenue;  there  was  the  royal  chancery,  a  clerical  body  presided 
over  by  the  chancellor,  the  keeper  of  the  great  seal;  and  finally 
there  was  a  curia  Regis  in  a  narrower  sense — a  body  of  legally 
trained  judges^  which  had  inherited  the  judicial  powers  and 
duties  of  its  ancestral  namesake.  Of  the  later  sub-division 
of  this  court  into  the  King's  Bench  and  Court  of  Common 
Pleas,  the  development  of  the  Court  of  the  Exchequer  and 
the  Court  of  the  Chancellor,  we  are  not  at  present  concerned. 
But  still  there  was  a  residual  judicial  power  in  the  hands  of 
the  king,  "to  be  exercised  by  him  in  the  great  council  of  the 

3  Maitland,  C.  H.,  p.  63.     Stubbs,  C.  H.,  I,  pp.  418  sqq. 

*  Hallam,  Mid.  Ages,  II,  p.  332n. 

6  Hallam,  Mid.  Ages,  II,  pp.  335  and  421-2. 


HISTORY  OF  THE  ADVISORY  OPINION  6 

nation,  or  in  some  smaller  council."^  In  theory,  of  course, 
even  till  1875,  the  Court  of  King's  Bench  was  coram  ipso  domino 
Rege;  but  in  fact,  long  after  the  time  of  which  we  are  speaking, 
the  king  and  justices  held  court  together  in  different  parts  of 
the  kingdom.  Maitland  tells  us^  that  "both  John  and  Henry 
III  did  justice  in  person,"  and  that  only  in  the  fourteenth 
century  had  it  become  uncommon  for  the  king  to  sit  in  court. 
Still  the  separation  of  the  executive  and  judicial  organs  had 
begun^  and  the  judges  forthwith  endeavored  to  promote  that 
separation  and  secure  as  complete  an  independence  as  possible 
from  executive  control. 

With  these  facts  in  mind,  it  is  easy  to  explain  why  the  king 
claimed  legal  advice  from  his  judges,  when  cases  were  submitted 
for  his  adjudication.  Naturally,  his  Concilium  expected  the 
same  assistance  when  necessary  even  in  the  absence  of  the  king; 
and  the  chancellor,  when  he  created  a  court  of  his  own  to  deal 
with  cases  when  the  Concilium  was  not  sitting,  often  solicited 
the  help  of  the  king's  judges.  In  such  cases  (as  matters  within 
their  province,  though  not  before  them  for  adjudication)  the 
judges  seem  to  have  acquiesced  quite  wilUngly  in  the  demands 
made  upon  them.  It  appears  that  in  a  Scire  facias  in  the 
Hilary  term  of  13  Edw.  Ill,  the  chief  justice  and  two  justices 
of  the  King's  Bench  sat  in  Chancery  to  pass  on  questions  of 
law^  and  the  editor  of  the  Year  Book  thinks  that  this  was 
probably  a  regular  proceeding.*^  Indeed,  in  1401  the  Commons 
complained  that  the  judges  of  both  the  King's  Bench  and 
Common  Pleas  were  giving  so  much  time  to  Chancery  that 
the  administration  of  the  common  law  was  greatly  delayed.^* 

« Maitland,  C.  H.,  pp.  69  and  136. 

7  C.  H.,  p.  134. 

*  See  Maitland,  C.  H.,  p.  133,  on  the  abolition  of  the  justiciarship. 

"Y.  B.  12-13  Edw.  Ill,  No.  12. 

^°  Ibid.     Intro,  ci-cv. 

»  Rot.  Pari.  2  Henry  IV,  No.  95. 


4  DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

Opinions  have  been  given  to  the  king  even  later  than  this. 
In  the  Earl  of  Arundel's  Case  (1449)^2  ^he  Lords  had  no  leisure 
to  examine  a  case  on  precedency  referred  to  them  by  the  king, 
and  by  their  advice  the  king  ordered  "that  the  Juges  of  the 
lawe  of  the  lande  beyng  in  the  same  Parlement,  shuld  here, 
see  and  examyn  the  seid  maters  .  .  .  and  as  they  conceyve 
therinne,  they  to  report  to  the  Kynges  Highnesse,  and  to  the 
Lordes  in  the  same  Parlement."    After  an  examination  of 
pleas  presented  to  the  king,  the  judges  rephed  that  this  was 
a  matter  for  the  king  and  Parliament  to  determine,  "yet  being 
thereto  so  commanded,  they  shewed  what  they  found  upon 
examination,  and  their  opinions  thereupon."    The  king  and 
Lords  then  decided  the  case.    In  the  famous  Aylesbury  Case 
(also  known  as  Paty's  Case),^^  when  the  queen  was  petitioned 
for  a  writ  of  error  returnable  in  Parliament,  she  referred  this 
first  to  the  attorney-general  and  soHcitor-general  and  later 
to  all  the  judges  (on  Feb.  21,  1704)  asking  whether  she  ought 
to  grant  the  writ  of  right  or  of  grace.    The  judges  gave  the 
written  opinion  on  February  24,  ten  of  them  thinking  the  writ, 
if  granted,  should  be  of  right,  two  of  grace.     Because  of  the 
disagreement  of  the  Houses  of  Parliament,  the  queen  finally 
prorogued  them  without  acting  at  all. 

It  remains,  in  this  connection,  to  advert  briefly  to  the  evolu- 
tion of  the  Privy  Council  from  the  Concilium  Regis.  A  per- 
manent royal  council,  distinct  from  the  curia,  had  become  well 
defined  by  the  beginning  of  the  fourteenth  century.  Its  chief 
function  was  to  advise  the  king  in  all  matters  referred  to  it 
by  him.  But  it  also  exercised  judicial  functions,^*  sometimes 
under  statutes  of  Parliament,  more  often  in  spite  of  the  protests 
of  that  body.  This  Council,  essentially  an  administrative 
organ  of  the  state,  in  spite  of  these  persisting  judicial  powers, 

12  Rot.  Pari.  27  Henry  VI,  No.  18.    Also  13  Co.  Rep.  63. 
1'  14  East  92  (n).    Also  reported,  sub  nom.  Ashby  and  White,  in  14 
HoweU's  St.  Tr.  695-888. 

"Maitland,  C.  H.,  pp.  216  sqq. 


HISTORY  OF  THE  ADVISORY  OPINION  5 

is  the  Privy  Council  of  the  time  of  Edward  IV  and  later.  Its 
composition  was  quite  flexible,  varying  at  the  will  of  the  king. 
In  1404,  it  contained  three  bishops,  nine  peers,  and  seven 
commoners.  The  judges,  it  seems,  did  not  generally  share  in 
its  deUberations;  Fortescue  tells  us,  however,  they  could  be 
summoned  by  the  councilors  in  case  they  were  needed. ^^  All 
matters  referred  to  the  Council  were  dealt  with  through  special 
commissions  appointed  to  examine  the  facts  and  report  to 
the  Council.  Usually  such  reports  were  accepted  after  the 
formahty  of  a  reading,  and  the  Council  rendered  judgment 
upon  them.  If  difficult  questions  of  law  arose,  the  judges 
were  consulted.  "Indeed  it  was  repeatedly  enjoined  by  acts 
of  parHament  that  the  lords  of  the  council  should  in  no  wise 
decide  legal  questions  without  the  aid  of  the  justices.  On 
one  such  occasion  we  read  of  the  justices  being  interrogated 
individually  for  their  advice.  P.  P.  C.  iii,  313."^^  Under 
Charles  II,  after  the  Star  Chamber  experiment,  the  judicial 
powers  of  the  Council  were  taken  from  it.  In  the  eighteenth 
and  nineteenth  centuries,  however,  it  came  to  include  many 
judges  and  ex-judges,  whose  legal  advice  would  be  of  great 
value.  So  in  1833  Parliament  created  a  Judicial  Committee 
of  the  Privy  Council  and  provided  that  "it  shall  be  lawful  for 
His  Majesty  to  refer  to  the  said  Judicial  Committee  for  hearing 
or  consideration  any  such  other  matters  whatsoever  as  His 
Majesty  shall  think  fit,  and  such  Conmaittee  shall  thereupon 
hear  or  consider  the  same,  and  shall  advise  His  Majesty  thereon 
in  manner  aforesaid.  "^^  Here  again,  then,  after  nearly  two 
centuries  we  have  another  court^^  created  out  of  the  Privy 

""Also  the  Juges,  the  Barones  off  the  excheqmer,  the  clerks  off  the 
rolles,  and  suche  lordes  as  the  forsaid  coimsellours  woll  desire  to  be  with 
thaym  for  materes  off  gret  deficulte,  mey  be  off  this  coimsell  when  thai  be 
so  desyred,  and  ellis  not."  Fortescue's  Governance  of  England,  Chap. 
XV,    p.    148. 

"Baldwin,    King's    Council,    p.    301. 

"3-4  Wm.  IV  c.  41,  s.  4. 

"See  (1912)  A.  C.  571,  at  585. 


6  DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

Council,  and  endowed  with  very  large  judicial  powers  (for  it 
is  the  highest  court  of  appeal  for  England's  many  colonies). 
At  the  same  time  it  is  the  legal  adviser  of  the  king  on  all  con- 
ceivable matters.^^ 

Except  during  the  period  1641-1833,  a  greater  or  less  amount 
of  judicial  power  has  resided  in  the  king  or  the  king  in  council. 
In  the  exercise  of  that  power,  he  has  always  had,  and  still 
possesses,  the  privilege  of  consulting  the  judges  of  his  courts. 
The  increasing  separation  of  powers  from  the  thirteenth  cen- 
tury on  has  not  affected  this  prerogative,  and  it  does  not  appear 
that  the  judges  have  ever  refused  to  give  such  assistance  when 
asked.  Whether  judges  of  the  King's  Bench  or  other  divisions, 
who  are  not  members  of  the  Privy  Council,  would  feel  bound 
to  answer  is  open  to  question.  In  the  case  already  referred 
to,  where  the  learned  Lords  of  the  Judicial  Committee  acknowl- 
edged their  obligation  to  give  any  opinion  requested  under 
Section  4  of  the  Judicial  Committee  Act,  they  called  attention 
to  the  fact  that  they  are  "all  Privy  Councillors,  bound  as  such 
to  advise  the  Crown  when  so  required  in  that  capacity.  "^^ 
The  question  of  the  willingness  of  the  other  judges  to  give  such 
opinions  will  doubtless  remain  unanswered  as  long  as  the  Crown 
can  refer  to  such  excellent  advisers  as  the  Judicial  Committee 
Act  provides. 

2.  The  Judges  as  Advisers  to  the  King  in  his  Executive  Capa- 
city. At  the  close  of  Edward  I's  reign,  the  judicial  curia  and 
its  duties  had  become  quite  definite,  constitutionally.  But 
the  point  of  importance  for  us  to  notice  is  that  some  or  all  of 

""Under  this  clause  there  is  no  limit  to  the  extent  and  variety  of 
matters  referable  by  her  Majesty  to  the  Judicial  Committee. "  Macqueen, 
p.   689n. 

"This  Committee,  exercising  most  important  judicial  functions,  is 
undoubtedly  liable  to  be  asked  questions  of  any  kind  by  the  authority  of 
the  Crown,  and  the  procedure  is  used  from  time  to  time,  though  rarely  and 
with  a  careful  regard  to  the  nature  of  the  reference."  (1912)  A.  C.  571, 
at  585. 

"  (1912)  A.  C.  571,  at  585. 


HISTORY  OF  THE  ADVISORY  OPINION  7 

its  members  are  still  members  of  the  Concilium  Regis,  the  ad- 
ministrative body  "to  which  the  king  looks  for  advice  and  aid 
in  the  daily  task  of  government.  "^^  The  necessity  of  separate 
judicial  organs  has  become  manifest,  but  the  king  is  loath  to 
deprive  himself  of  valuable  assistance  and  expert  counsel  from 
whatever  quarter  it  may  come.  In  the  fifteenth  century, 
though  the  judges  were  not  in  regular  attendance  upon  the 
Concilium,  their  presence  could  be  requested  in  case  of  neces- 
sity.^^ As  long  as  this  state  of  affairs  continued,  the  king,  it 
seems,  commanded  the  advice  of  his  judges,  even  in  admini- 
strative questions.  Hallam  asserts  that  the  Council  appear 
to  have  advised  the  king  as  to  his  approval  of  laws  passed  by 
Parliament,  regularly  during  the  reigns  of  Edward  I  and  Edward 
11.^  Whether  the  king,  apart  from  the  Council,  can  consult 
the  judges  on  administrative  matters  is  not  clear.  But  it  is 
more  than  reasonable  to  suppose  that  he  would  deem  their 
intermittent  membership  in  the  Council  and  their  immediate 
dependence  on  him  as  the  fountain  of  all  justice  sufficient 
reasons  for  claiming  their  advice,  especially  in  matters  of  a 
legal  character,  and  also,  to  a  certain  extent,  in  questions 
pertaining  to  his  executive  rights  and  duties  apart  from  the 
enforcement  of  the  laws.  Illustrations  of  inquiries  of  both  kinds 
are  not  wanting. 

In  1388,  Richard  II  commanded  the  opinions  of  the  judges 
on  a  set  of  questions  concerning  certain  acts  of  the  last  Par- 
liament, and  secured  from  them  sealed  statements  that  his 
ministers  could  not  be  impeached  without  his  consent,  that 

"Maitland,  C.  H.,  p.  91.    See  also  Hallam,  Mid.  Ages,  III,  p.  138. 

^  "In  the  actual  records  of  the  privy  council  it  is  a  constantly  recur- 
ring regulation  that  the  judges  are  to  be  consulted  in  all  matters  touching 
the  king's  prerogatives  or  freeholds  (P.  P.  C.  iii,  151,  217;  iv,  63).  Many 
instances  of  the  presence  of  the  judges  are  recorded  in  the  Proceedings  of 
the  Council."  Fortescue,  297.  Plummer,  the  modem  editor  of  Fortes- 
cue's  Governance  of  England,  gives  several  such  instances  in  the  Intro- 
duction, pages  46-7. 

2»Mid.    Ages,   III,   p.    142. 


8  DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

the  impeachment  of  his  favorite,  the  Earl  of  Suffolk,  could 
be  revoked,  that  the  statute  estabhshing  a  commission  of 
reform  was  derogatory  to  his  prerogative  and  those  who  passed 
it  guilty  of  treason,  that  the  king's  business  took  precedence 
in  Parliament,  and  that  he  could  end  the  sessions  of  Parliament 
at  his  pleasure.^  These  opinions  as  given  were  probably 
extorted  by  threats,^  but  it  does  not  follow  that  the  judges 
questioned  the  king's  right  to  consult  them,  if  only  he  did  not 
dictate  their  answers. 

Macqueen^^  cites  an  interesting  case  (dated  May  9,  1624) 
where  James  I  refused  to  give  his  royal  assent  to  a  bill  which 
had  passed  both  Houses  until  the  judges  had  given  him  their 
opinions  as  to  whether  it  would  be  retroactive  in  certain  re- 
spects or  not;  he  finally  assented,  relying  on  their  negative 
answer  "as  a  principal  motive." 

George  I,  in  1717,  sent  a  letter  by  the  Lord  Chancellor  to 
the  judges  requesting  them  to  meet  and  give  their  opinions 
as  to  whether  or  not  the  education  and  care  of  his  Majesty's 
grandchildren  and  the  Prince  of  Wales,  the  ordering  of  their 
abode,  the  approbation  of  their  marriages,  etc.,  belonged  of 
right  to  his  Majesty.  The  judges  apparently  did  not  question 
their  duty  to  comply,  indeed  impliedly  admitting  it  in  their 
reply  to  the  request  of  the  Prince  of  Wales  to  hear  counsel 
in  his  behalf,  "that  in  cases  wherein  our  advice  is  required  by 
His  Majesty,  we  cannot  hear  counsel  without  His  Majesty's 
leave.  "27  After  a  prolonged  consideration  of  the  case  they 
gave  their  opinions  seriatim}^ 

The  same  monarch,  in  Sir  John  Fenwick's  Case^^  requested 
the  judges  and   attorney-general  "to  consider  of  the  King's 

2*Hallam,  Mid.  Ages,  III,  p.  72. 

^  See  report  in  Fortescue,  p.  392,  based  on  Rushworth,  Appendix, 
p.   261.    Also   Hallam,   I.e. 
^  House  of  Lords,   p.   54. 

"  The  king  later  granted  permission  for  counsel  to  be  heard. 
28  Fortescue,  p.  40L    Also  15  Howell's  St.  Tr.  1195. 
"Fortescue,   p.   385. 


HISTORY  OF  THE  ADVISORY  OPINION  9 

pardoning  the  judgment;"  and  they  all  were  "of  opmion  that 
the  King  could  pardon  all  or  any  part  of  the  judgment;  and  in 
this  case  all  the  judgment  in  high  treason  was  pardoned,  except 
severing  his  head  from  his  body,  and  he  was  beheaded  accor- 
dingly." 

However,  cases  of  this  nature  are  infrequent.  Most  of 
those  which  have  found  their  way  into  the  reports  are,  quite 
naturally,  cases  of  a  judicial  nature.  When  the  king  is  especial- 
ly interested  in  a  prosecution,  he  may  attempt  to  eUcit  from 
the  judges  in  advance  of  the  adjudication  in  court  an  opinion 
as  to  the  state  of  the  existing  law  or  ex  parte  suggestions  to 
the  prosecution  on  questions  of  procedure  or  even  an  actual 
decision  on  the  merits  of  the  case.^° 

Thus  in  Stafford's  Case  (1485)^^  where  the  defendant  was 
taken  from  a  sanctuary  under  the  protection  of  the  Abbot  of 
Abingdon  and  held  for  trial  in  the  king's  court,  the  judges 
were  asked  to  give  an  opinion  at  once,  before  the  day  set  for 
the  hearing.  They  objected,  "How  can  we  debate  this  matter 
which  will  come  before  us  soon?  and  it  is  not  good  order  to 
argue  this  matter,  and  give  our  opinions,  before  it  comes  before 
us  judicially.  The  Attorney-General  said,  if  the  King  knew 
that  the  sanctuary  would  save  him,  it  should  not  come  before 
them."  But  Hussey,  C.  J.,  went  personally  to  the  king  and 
besought  him,  "  that  he  would  not  desire  to  know  their  opinions 
beforehand  ...  for  they  thought  it  should  come  before  them 
in  the  king's  bench  judicially,  and  then  they  would  do  that 
which  of  right  they  ought;  and  the  king  accepted  of  it." 

James  I  indulged  in  the  most  unsparing  abuse  of  the  con- 
sultative power  in  cases  of  a  judicial  nature  in  the  history  of 

"Another  common  method  of  interfering  with  the  course  of  justice 
is  to  insist  on  the  postponement  of  the  hearing  to  a  time  more  convenient 
for  the  prosecution,  as  in  the  Commendams  Case.  See  Bacon's  Works, 
IV,    pp.    631    and    636. 

"Fortescue,  389.  Coke,  Inst.  Ill,  pp.  29-30.  See  also  2  Howell's 
St.  Tr.,  879n  and  Y.  B.  Pasch.  1  Henry  VII,  15.  Trin.  1. 


10   DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

the  English  constitution.  He  was  undoubtedly  zealously 
aided  by  the  ever-active  Sir  Francis  Bacon,  who  was  animated 
perhaps  both  by  his  ambition  and  his  envy  of  Lord  Coke,  then 
chief  justice  of  the  King's  Bench;  for  most  of  the  cases  are 
during  the  period  when  Bacon  was  attorney-general  and  he  is 
most  assiduous  in  pressing  them  upon  the  judges.  Gross 
subversion  of  justice  and  a  serious  invasion  of  the  independence 
of  the  judiciary  were  only  prevented  by  the  courageous  defiance 
of  that  sturdy  bulwark  of  the  common  law.  Lord  Coke.  Two 
or  three  cases  will  illustrate  the  situation.  Best  known  of 
all  is  the  case  of  Peacham,^^  an  enthusiastic  clergyman  too  fond 
of  privately  scribbling  sermonical  tirades  against  the  govern- 
ment never  intended  to  reach  the  ears  of  others  than  himself. 
His  house  was  searched  and  several  ''treasonable"  utterances 
brought  to  hght.  The  king,  apparently,  was  uncertain  whether 
a  prosecution  for  treason  would  stand  and  directed  Bacon, 
with  the  aid  of  the  solicitor  and  several  sergeants,  to  sound  the 
judges.  The  original  design  was  to  prevent  joint  action  and 
one  interrogator  was  assigned  to  each  judge,  Bacon  braving 
the  chief  justice  himself.  The  first  encounter  was  discouraging, 
for  Coke  affirmed  "that  such  particular  .  .  .  and  auricular 
taking  of  opinions  was  not  according  to  the  custom  of  this 
realm,"  and  doubted  whether  his  brethren  would  yield.^^ 
Bacon's  collaborators^^  were  received  with  more  favor;  Crook, 
J.,  and  Houghton,  J.,  were  both  wilUng  to  answer,  and 
Dodderidge,  J.,  declared  that  "every  judge  was  bound  ex- 
presly  by  his  oath,  to  give  your  Majesty  counsel  when  he  was 
called;  and  whether  he  should  do  it  jointly  or  severally,  that  rested 

=•2  Bacon's  Works,  IV,  pp.  593-601.     2  Howell's  St.  Tr.  871. 

^  Bacon's  Works,  IV,  p.  593. 

'*They  were  instructed  by  Bacon,  "that  they  should  not  in  any  case 
make  any  doubt  to  the  judges,  as  if  they  mistrusted  they  would  not  deliver 
any  opinion  apart,  but  speak  resolutely  to  them,  and  only  make  their  com- 
ing to  be,  to  know  what  time  they  would  appoint  to  be  attended  with  the 
papers. " 


HISTORY  OF  THE  ADVISORY  OPINION  1 1 

in  your  Majesty's  good  pleasure."  Bacon  later  delivered 
Peacham's  papers  to  Coke,  who  received  them,  but  with  the 
protest  "  that  judges  were  not  to  give  opinion  by  fractions,  but 
entirely  according  to  the  vote,  whereupon  they  should  settle 
upon  conference:  and  that  this  auricular  taking  of  opinions, 
single  and  apart,  was  new  and  dangerous,"^  A  letter  of 
February  11,  1614,^  tells  us  that  when  Coke  heard  that  the  other 
judges  had  finally  given  their  opinions,  he  promised  that  his 
would  be  ready  in  a  short  time.  Presumably  they  are  the 
"answers"  enclosed  in  the  letter  of  February  14th.'^ 

It  should  be  noted  that  the  independent  Coke  rests  his 
objections  upon  the  "particular"  taking  of  opinions,  when 
the  judges  are  consulted  one  by  one  and  are  not  permitted  to 
confer.     Maitlajnd^*   says   Coke   himself,    when   soUcitor   and 

»L.c.,   p.   596. 

^Lx.,  p.   601. 

^''  L.C.,  p.  601.  The  comments  of  Foster  on  this  case  are  well  worth 
quoting:  "And  perhaps  still  less  Regard  will  be  paid  to  it  if  it  be  considered 
that  the  King,  who  appeareth  to  have  had  the  Success  of  the  Prosecution 
much  at  Heart,  and  took  a  Part  in  it  unbecoming  the  Majesty  of  the  Crown, 
condescended  to  instruct  His  Attorney-General  with  regard  to  the  proper 
Measures  to  be  taken  in  the  Examination  of  the  Defendant.  That  the 
Attorney  at  His  Majesty's  Command  submitted  to  the  Drudgery  of  sound- 
ing the  Opinions  of  the  Judges  up)on  the  Point  of  Law,  before  it  was  thought 
advisable  to  risque  it  at  an  open  Trial.  That  the  Judges  were  to  be  sifted 
separately  and  soon,  before  they  could  have  an  Opportunity  of  conferring  to- 
gether. .\nd  that  for  this  Purpose  four  Gentlemen  of  the  Profession  in  the 
Service  of  the  Crown  were  immediately  dispatched,  one  to  each  of  the 
Judges;  Mr.  Attorney  himself  undertaking  to  Practise  upon  the  Chief  Jus- 
tice, of  whom  some  Doubt  was  then  entertained. 

"Is  it  possible  that  a  Gentleman  of  Bacon's  great  Talents  could  submit 
to  a  Service  so  much  below  his  Rank  and  Character! 

"This  Method  of  forestaUing  the  Judgment  of  a  Court  in  a  Case  of 
Blood  then  depending,  at  a  Time  too  when  the  Judges  were  removable  at 
the  Pleasvire  of  the  Crown,  doth  no  Honour  to  the  Memory  of  the  Persons 
concerned  in  a  Transaction  so  insidious  and  unconstitutional;  and  at  the 
same  Time  greatly  weakeneth  the  Authority  of  the  Judgment."  Crown 
Law,  pp.  199-200. 

38  C.    H.,   p.    270. 


12    DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

attorney-general,  had  often  asked  for  extra-judicial  opinions. 
Bacon  seems  to  have  felt  some  diffidence  about  pressing  the 
"particular"  feature  too  far,  for  on  the  same  day  that  the 
judges  gave  their  answers  in  Peacham's  Case,  he  writes  the 
king  of  a  conference  between  himself,  his  legal  assistants  and 
all  the  judges  (including  Lord  Coke),  concerning  the  prosecution 
for  treason  of  one  Owen.^^  He  adverts  to  the  suggestion  of 
the  king  that  the  *' taking  of  opinions  apart  .  .  .  which  was 
prescribed  and  used  in  Peacham's  cause"  be  practiced  here, 
but  says  they  thought  it  unnecessary  ''in  a  case  so  clear. ""^^ 
The  papers  were  left  with  the  judges  and  Bacon  thinks  there 
will  be  no  doubt  of  the  result.  Again  in  the  proceedings  against 
the  Earl  and  Countess  of  Somerset,  the  attorney-general  several 
times  consulted  the  judges  extra- judicially  as  to  the  best  course 
to  be  followed,  always  at  the  king's  direction.'^^  Other  cases 
might  be  cited  from  Bacon's  writings  and  elsewhere,  but  these 
serve  to  indicate  the  practice  of  that  time. 

There  seems  to  have  been  no  question  of  the  obligation 
of  the  judges  to  respond  to  the  king's  interrogatories,  even 
though  it  involved  passing  upon  a  case  which  might  come 
before  them  judicially  in  a  short  time.  Dodderidge,  J.,  in  the 
reply  quoted  above,  does  not  quahfy  the  obligation  in  any  way; 
and  though  Coke  objected  to  the  "auricular  taking  of  opinions, 
single  and  apart, "  he  seems  to  have  given  his  opinion  in  every 
case.  True,  when  he  was  no  longer  a  judge  he  protested  against 
the  whole  custom,  and  argued  well  against  its  desirabiUty,^^ 

"Bacon's  Works,  IV,  pp.  321  and  600. 

*°  "Yet  both  my  lords  of  the  council,  and  we  amongst  ourselves,  holding 
it,  in  a  case  so  clear,  not  needful;  but  rather  that  it  would  import  a  diffidence 
in  us,  and  deprive  us  of  the  means  to  debate  it  with  the  judges  (if  cause 
were)  more  strongly  (which  is  somewhat)  we  thought  best  rather  to  use  this 
form,"  i.e.  a  common  conference.     Bacon's  Works,  IV,  p.  601. 

"  See  Letters  No.  131  to  138,  Bacon's  Works,  IV,  pp.  616-25. 

*2"The  Judges  ought  not  to  dehver  their  opinions  beforehand  of  any 
criminall  case,  that  may  come  before  them  judicially;  .  .  .  especially  in  cases 
of  high  nature,  and  which  deserve  so  fatall  and  extreme  punishment.     For 


HISTORY  OF  THE  ADVISORY  OPINION  13 

but  his  practice  on  the  bench  was  in  conformity  with  the  pre- 
vailing doctrine  that  the  judges  were  bound  to  give  the  king 
legal  advice  whenever  he  requested  it.'*^ 

Charles  I  appears  to  have  been  more  sparing  in  exercising 
his  privilege,  but  extra-judicial  opinions  were  still  given.  In 
the  case  of  Stroud,  Long,  et  al.,'^  the  king,  before  proceeding 
in  the  Star  Chamber  against  the  members  of  the  House  of 
Commons  who  had  been  imprisoned  by  him,  caused  the  attor- 
ney-general to  request  the  opinions  of  the  judges  on  certain 
questions  as  to  the  privileges  of  a  member  of  Parhament  not 
to  be  punished  for  speeches  in  the  House,  as  to  how  long  such 
immunity  extended,  etc.,  to  all  of  which  the  judges  gave  their 
replies.  But  when  asked  if  a  member  of  Parhament  could  be 
punished  for  saying  in  Parliament  that  "the  Lords  of  the 
Council  and  the  Judges  had  agreed  to  trample  upon  the  Liberty 
of  the  Subject  and  the  Privileges  of  Parliament,"  they  ''desired 
to  be  spared  to  make  any  answer  thereunto,  because  it  con- 
cerned themselves  in  particular. "  And  they  repHed  to  another 
question  that  as  it  was  a  point  of  law,  it  ''would  not  be  for  the 
honor  of  the  king  nor  the  safety  of  the  subject"  to  deal  with 
the  case  in  Star  Chamber.  The  king  dropped  the  Star  Chamber 
proceedings,  but  kept  the  men  in  prison,  and  when  habeas 
corpus  was  sought,  he  removed  them  to  the  Tower  and  refused 
to  produce  them  in  court.  On  Michaelmas  (1629),  he  summoned 
Hyde,  C.  J.,  and  Whitelocke,  J.,  to  Hampton  for  private  ad- 
vice. During  the  next  term,  the  court  gave  its  opinion  that 
the  men  should  be  released  on  bail.  Other  cases  of  consultation 
may  be  inferred  from  the  statement  of  the  son  of  Whitelocke, 
J.,*^  that  his  father  "did  often  and  highly  complain  against 

how  can  they  be  indifferent,  who  have  delivered  their  opinions  before- 
hand without  hearing  of  the  party,  when  a  small  addition,  or  subtraction 
may  alter  the  case."     Coke,  Inst.  Ill,  p.  29. 

«Maitland,    C.   H.,   p.    270. 

**3  Howell's  St.  Tr.,  235. 

**  Memorials,    p.    14. 


14   DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

this  way  of  sending  to  the  Judges  for  their  Opinions  beforehand.  '^ 
Indeed  Fortescue  records  another  case  from  the  time  of  the  Re- 
storation, when  "the  Judges  met  to  consult  concerning  the 
prosecution  of  the  regicides,  and  the  Attorney-General  made 
several  queries,  not  only  in  framing  of  the  indictments,  but 
in  relation  to  overt  acts  and  evidence,  in  which  all  the  Judges 
gave  their  opinions.  "^^ 

The  legal  force  of  judicial  responses  to  the  king's  questions 
at  this  period  cannot  easily  be  determined.  The  king  seems 
to  have  acted  in  accord  with  advice  so  given  in  general,  as  in 
the  Star  Chamber  case  of  1629.  But  would  the  judges  have 
felt  bound  to  follow  these  opinions,  if  the  same  case  came 
before  them  later  in  court?  This  is  an  important  point  in  the 
light  of  the  present  practice  in  the  United  States,  as  will  be 
seen,  but  it  seems  impossible  to  settle  it.  Beckman  v.  Maples- 
den  (1662)'*^  throws  a  little  light  on  the  question.  Bridgman, 
C.  J.,  tells  of  a  dispute  in  New  Sarum  between  the  mayor  and 
certain  vintners  regarding  the  measures  used,  which  was  by 
the  Lords  of  the  Council  referred  for  decision  to  certain  judges 
who  passed  "resolutions"  covering  the  disputed  points.  He 
then  continues,  "as  for  the  objection  made  from  the  resolu- 
tion of  the  Judges  in  1583,  I  give  these  answers  to  it,  that 
it  was  an  extra-judicial  opinion;  and  though  I  must  give  rev- 
erence to  the  opinions  of  the  Judges,  yet  I  make  a  difference 
between  cases  adjudged  upon  debate  and  having  counsel  on 
both  sides,  and  resolution  upon  a  case  reported  or  referred  to 
them."'*^  But  would  he  extend  this  principle  to  carefully 
weighed  opinions  solemnly  given  to  the  king? 

An  express  reservation  on  this  very  point  was  made  in 
Whis ton's  Case  (1711).^^  There  was  some  doubt  as  to  whether 
Convocation  could  take  original  jurisdiction  in  a  case  of  heresy, 

♦«  Fortescue,  389,  on  the  authority  of  Keyl.  9,  10. 

*'Bridg.  60. 

«  L.C.  at  p.  78. 

"  Burnet's  Own  Times,  p.  867. 


HISTORY  OF  THE  ADVISORY  OPINION  15 

and  the  upper  house  requested  the  queen  to  obtain  the  opinions 
of  the  judges,  which  she  did.  Eight  judges  and  the  attorney- 
general  and  solicitor-general  said  they  had  jurisdiction,  "but 
brought  no  express  law  or  precedent  to  support  their  opinion; 
.  .  .  they  were  also  of  opinion,  that  an  appeal  lay  from  the 
sentence  of  convocation  to  the  crown;  but  they  reserved  to 
themselves  a  power  to  change  their  minds,  in  case,  upon  an 
argument  that  might  be  made  for  a  prohibition,  they  should 
see  cause  for  it."  Four  were  contra,  but  the  queen  said  Con- 
vocation should  proceed,  as  there  was  no  doubt  of  the  juris- 
diction. The  same  principle  was  enunciated  in  the  case  of 
Lord  George  Sackville  in  1760.^^  "But  as  the  matter  may 
several  ways  be  brought,  in  due  course  of  law,  judicially  before 
some  of  us  by  any  party  affected  by  that  method  of  trial,  if  he 
thinks  the  court  has  no  jurisdiction,  or  if  the  court  should 
refuse  to  proceed  in  case  the  party  thinks  they  have  jurisdiction; 
we  shall  be  ready,  without  difficulty,  to  change  our  opinion, 
if  we  see  cause,  upon  objections  that  may  be  then  laid  before 
us,  though  none  have  occurred  to  us  at  present  which  we  think 
sufficient."  And  Mansfield  reiterated  this  proposition  in  his 
note  to  the  Lord  Keeper  enclosing  the  opinion .^^  The  exis- 
tence of  this  opinion  is  of  considerable  weight  in  determining 
the  constitutional  practice,  for  it  is  subscribed  to,  without 
protest  other  than  the  reservation  mentioned,  by  judges  of 
great  authority .^^ 

It  will  be  convenient  to  stop  a  moment  to  summarize  the 
practice  at  this  period,  because  it  was  shortly  after  1760  that 

50  2  Eden,  371. 

*^"The  judges  .  .  .  are  exceedingly  thankful  to  his  Majesty  for  his 
tenderness  in  not  sending  any  question  to  them  till  the  necessity  of  such 
reference  became  manifest  and  earnest.  ...  In  general,  they  are  very 
averse  to  giving  extra-judicial  opinions,  especially  where  they  affect  a  parti- 
cular case;  but  the  circumstances  of  the  trial  now  depending  ease  us  of  diffi- 
culties upon  this  occasion,  and  we  have  laid  in  our  claim  not  to  be  bound 
by  this  answer." 

"Mansfield,  C.  J.,  Willes,  Parker,  Denison,  Foster,  Smythe,  Adams, 
Bathurst,    Wihnot,    Noel,    Lloyd,    J  J. 


16    DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

the  advisory  opinion  was  introduced  into  the  American  judicial 
system.  It  was  well  recognized  that  the  judges  were  bound  to 
advise  the  Crown  at  his  request.  But  the  judges  were  averse 
to  giving  such  opinions  and  preferred  to  do  so  only  when  "  the 
necessity  of  such  reference  became  manifest  and  earnest."^ 
(Compare  this  with  the  "important  question  and  solemn  occa- 
sion" clause  of  the  United  States  practice).  Also  judicial  senti- 
ments severely  condemned  the  giving  of  opinions  in  any  partic- 
ular case,^  especially  in  criminal  cases.  Even  in  1485,  Hussey, 
C.  J.,  had  taken  this  stand  in  criminal  cases ;^  and  Coke  reiterated 
it  emphatically  in  1628,^^  though  his  practice  did  not  do  justice 
to  his  theory.  Hargrave  (writing  in  1775)  says  that  it  is 
undesirable  to  give  opinions  in  advance  of  any  case  already 
pending}''  Finally,  in  the  eighteenth  century,  the  judges  have 
enunciated  the  principle  that  they  will  not  be  bound  in  actual 
cases  argued  before  them  by  extra-judicial  opinions  previously 
given. 

Lord  Sackville's  Case  is  the  last  advisory  opinion  the  records 
disclose.    Very  likely  the  questioning  of  the  judges  by  the 

"'  Mansfield's  Note  in  Lord  Sackville's  Case,  2  Eden,  371. 

^*  See  Mansfield's  Note  just  quoted.  And  cf.  Foster's  criticism  of 
Peacham's  Case  (written  in  1762) — see  note  on  p.  11  supra;  Foster  was  one 
of  the  judges  in  Sackville's  Case. 

"  Stafford's  Case — see  p.  9  supra. 

•^"Inst.    Ill,    pp.    29-30. 

^^  "But  however  numerous  and  strong  the  precedents  may  be  in  favor 
of  the  King's  extra- judicially  consulting  the  judges,  on  questions  in  which 
the  crown  is  interested,  it  is  a  right  to  be  understood  with  many  exceptions, 
and  such  as  ought  to  be  exercised  with  great  reserve,  lest  the  rigid  impar- 
tiality so  essential  to  their  judicial  capacity  should  be  violated.  The  anti- 
cipation of  judicial  opinions  on  causes  actually  depending,  should  be  parti- 
cularly guarded  against;  and  therefore  a  wise  and  upright  judge  will  ever 
be  cautious  how  he  extra-judicially  answers  questions  of  such  a  tendency. 
...  It  would  be  a  presumption  in  us,  if  we  were  to  be  more  particular 
on  a  subject  of  so  much  delicacy,  by  attempting  to  mark  the  bounds  to  a 
right,  the  extent  of  which  we  do  not  find  clearly  ascertained  by  precedent 
or  authority."    Co.  Litt.   110,  Hargrave's  Note.  5. 


HISTORY  OF  THE  ADVISORY  OPINION  17 

Crown  is  a  practice  "almost  or  altogether  obsolete,"  desuetude 
for  one  hundred  and  fifty  years  having  rendered  "unconstitu- 
tional in  the  sense  in  which  that  term  is  understood  in  England, 
any  attempt  to  repeat  such  an  experiment,"  as  has  been  sug- 
gested by  the  Judicial  Committee  of  the  Privy  Council.^^ 
This  is  a  purely  academic  question  now,  since  under  the  Judicial 
Committee  Act^*  already  referred  to,  the  king  may  obtain  as 
good  legal  advice  as  can  be  had  in  England  on  any  point  what- 
soever .*°  The  Crown  can  ask  for  opinions  on  particular  cases 
under  this  act  and  indeed  has  actually  done  so.^^  It  may  be 
interesting  to  observe  that  the  Local  Government  Act  of  1888*^ 

58  (1912)  A.  C.  571,  at  586.  But  compare  the  opinion  of  Fitzpatrick, 
C.  J.,  in  43  Can.  S.  C.  R.  536  (1910):  "The  members  of  this  court  are  the 
ofl&cial  advisers  of  the  executive  in  the  same  way  as  the  judges  in  England 
are  the  counsel  or  advisers  of  the  king  in  matters  of  law.  ...  In  England 
the  practice  of  calling  on  the  judges  for  their  opinion  as  to  existing  law  is 
well  established."  He  goes  on  to  point  out  that  the  principal  case  does 
not  call  for  the  anticipation  of  a  regular  decision  in  court,  and  that  the 
opinion  if  given  would  not  be  binding — cf.  Mansfield  in  1760. 

"  3-4  Wm.  IV  c.  41,  s.  4. 

«°  Cf.  (1912)  A.  C.  571,  at  585. 

*^  In  re  Schlimiberger  (1853),  9  Mo.  P.  C.  1.  Note  especially  the  words 
of  Dr.  Lushington  (speaking  for  the  Committee)  at  p.  12:  "The  only  con- 
struction which  can  be  placed  upon  the  fourth  section  of  3  and  4  Wm.  IV 
c.  41  is  a  construction  which  shall  give  full  and  complete  meaning  to  the 
words  therein  contained,  without  any  limitation  whatsoever.  .  .  .  Their 
Lordships  are  of  opinion  that  there  is  enough  in  this  reference  not  merely 
to  justify,  but  absolutely  to  reqmre  them  to  proceed,  because  this  is  re- 
ferred to  them  by  an  Order  in  Council  .  .  .  (which)  falls  within  the  .  .  . 
provisions  of  the  Statute." 

^2  "If  any  question  arises,  or  is  about  to  arise,  as  to  whether  any  busi- 
ness, power,  duty  or  liabihty,  is  or  is  not  transferred  to  any  county  council 
or  joint  committee  imder  this  Act,  that  question,  without  prejudice  to  any 
other  mode  of  trying  it,  may,  on  the  application  of  a  chairman  of  quarter 
sessions,  or  of  the  county  council,  committee,  or  other  local  authority  con- 
cerned, be  submitted  for  decision  to  the  High  Court  of  Justice  in  such  sum- 
mary manner  as,  subject  to  any  rules  of  Court,  may  be  directed  by  the  Court; 
and  the  Court,  after  hearing  such  parties  and  taking  such  evidence  (if  any) 
as  it  thinks  just,  shall  decide  the  question."    51-52  Vic.  c.  41,  s.  29. 


18    DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

provides  that  certain  local  executive  bodies  may  refer  questions 
of  a  particular  nature  to  the  High  Court  of  Justice  for  a  "de- 
cision." In  Ex  parte  County  Council  of  Kent  and  Council 
of  Dover,^  Lord  Halsbury,  L.C.,  held  that  no  appeal  lay  from 
such  a  "decision."  It  is  not  a  judgment,  order  of  court  or 
decree.  The  appUcation  is  consultative  only  and  may  cover 
cases  about  to  arise;  furthermore  it  is  to  be  without  prejudice 
to  other  modes  of  trjdng  the  question. 

But  although  the  practice  of  referring  questions  to  the 
judges  is  now  obsolete  (in  the  absence  of  statute),  and  although 
a  modern  Judicial  Committee  frowns  upon  the  "earlier  practice 
in  bad  times"  as  of  no  weight  with  them  at  the  present  time, 
especially  in  the  light  of  disuse  for  one  hundred  and  fifty  years,^ 
it  is  of  great  importance,  for  an  understanding  of  the  advisory 
opinion  in  the  United  States,  that  we  should  know  what  English 
statesmen,  judges  and  legal  writers  deemed  to  be  the  legitimate 
practice,  under  the  constitutional  law  of  England  in  1760. 
For,  as  the  Massachusetts  court  pointed  out  in  1878,^^  the  intro- 
duction of  the  advisory  opinion  clause  in  the  constitution  of 
Massachusetts  of  1780  (its  first  appearance  in  the  United  States) 
"  evidently  had  in  view  the  usage  of  the  EngHsh  Constitution 
by  which  the  King,  as  weU  as  the  House  of  Lords,  whether 
acting  in  their  judicial  or  in  their  legislative  capacity,  had  the 
right  to  demand  the  opinions  of  the  twelve  judges  of  England. " 
The  form  of  the  clause  is  explicable  largely  because  of  its  English 
antecedents,  and  it  is  more  than  probable  that  certain  impor- 
tant opinions  (now  regarded  as  "leading"  in  character)  had 
their  source  in  the  practice  of  the  EngUsh  judges. 

3.  The  Judges  as  Advisers  to  the  House  of  Lords  in  its  Judicial 
Capacity.  The  obligation  of  the  judges  to  give  advice  in  matters 
of  law  to  the  House  of  Lords  when  that  body  is  acting  as  a 
court  rests  on  the  fact  that  they  are  members  of  the  House  and 

«  (1891)  1  Q.  B.  725. 

"  (1912)  A.  C.  571,  at  586. 

» Opinion  of  the  Justices,  126  Mass.  557. 


HISTORY  OF  THE  ADVISORY  OPINION  19 

consequently  at  its  command.  From  the  time  of  Edward  I 
to  the  present  day,  the  judges  have  been  summoned  to  Parha- 
ment,  along  with  the  prelates  and  barons.  They  are  not 
peers — the  writ  nms  cum  prelatis,  magnatihus  et  proceribus, 
not  cum  ceteris  prelatis,  etc.;^  but  as  members  of  the  upper 
house  it  is  their  duty  to  give  counsel  to  the  king.^^  It  must  be 
remembered  that  the  king  dispensed  justice  in  Parliament  as 
well  as  in  the  various  Councils,  and  the  advice  of  the  judges 
on  such  occasions  would  be  especially  desirable.  Note  par- 
ticularly that  the  commune  concilium  regni,  one  of  the  most 
important  founts  of  justice,  was  composed  chiefly  of  the  peers 
and  the  judges.  Here,  too,  the  learning  of  the  judges  could 
be  drafted  into  service.  Appeals  lie  either  to  this  council  or 
to  Parliament.^^  A  little  later,  this  jurisdiction  was  restricted 
to  ParUament  alone,^^  but  the  habit  of  looking  upon  the  peers 
in  the  commune  concilium  as  judicial  authorities  seems  to  have 
discouraged  the  Commons  from  attempting  to  associate  them- 
selves with  the  upper  house  in  exercising  the  judicial  functions 
of  the  "king  in  ParUament. "^°  So  this  phrase,  in  a  judicial 
sense,  came  to  mean  the  king  and  the  House  of  Lords.'^  But 
gradually,  in  the  fourteenth  and  fifteenth  centuries  the  king 
ceased  to  sit  with  the  House  in  judicial  matters,  and  the  House 
succeeded  to  (perhaps  received  by  delegation^)  the  final  appellate 
jurisdiction  of  the  "king  in  Parliament."  Meanwhile  the  posi- 
tion of  the  judges  in  this  supreme  court  has  been  changing. 
Matthew  Hale  conjectured  that  at  an  early  date  they  had  a 

"  Maitland,  C.  H.,  p.  176. 

^^"The  use  of  the  words  'tractaturi  et  consilium  vestmin  impensuri* 
marks  the  theoretical  position  of  the  upper  house  and  its  attendant  judges; 
they  are  coimseUors  preeminently;  no  such  words  occiu:  in  the  writs  imder 
which  the  representative  members  are  elected."     Stubbs,  C.  H.,  Ill,  p.  393. 

«8  Maitland,  C.  H.,  p.  136.     Stubbs,  C.  H.,  II,  pp.  272  sqq. 

«8  Stubbs,  C.  H.,  Ill,  pp.  476  sqq.,  especially  note  2  on  page  477. 

'"Stubbs,  C.  H.,  II,  pp.  258-9. 

"Maitland,  C.  H.,  pp.  136  and  214. 

"HaUam,  Mid.  Ages,  III,  p.  144. 


20        DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

voice  in  judicioJ^  But  before  the  end  of  the  Middle  Ages 
(Macqueen^^  says  since  Edward  III)  it  was  a  settled  principle 
that  they  had  no  vote  and  were  only  to  give  their  opinions 
when  asked.^^  Thus  in  1403,  when  a  petition  from  the  Duke 
of  Northumberland  in  the  nature  of  a  plea  against  a  charge  of 
treason  was  referred  (qu.,  by  whom?)  to  the  justices  for  exami- 
nation to  get  their  counsel  and  advice,  it  was  ''contrary  to  the 
wish  of  the  Lords,  who  thought  judgment  belonged  to  them 
alone.  "^^  And  the  king  and  Lords  later  gave  judgment.  Here 
there  is  evidence  that  the  Lords  feared  that  soliciting  the  advice 
of  the  judges  might  admit  them  to  share  in  the  judgment. 
But  that  has  completely  disappeared  by  the  middle  of  the 
century,  as  may  be  seen  from  the  Earl  of  Arundel's  Case^^  and 
again  in  Thorp's  Case.'^^  In  the  latter  case,  the  speaker  of  the 
Commons  had  been  imprisoned  upon  a  judgment  in  trespass, 
and  the  lower  house  petitioned  the  king  and  Lords  that  he  be 
released  under  privilege  of  Parliament.  The  Lords  stated  the 
case  to  the  judges  and  asked  if  Thorp  should  be  set  free;  but 
the  judges,  after  conference,  replied  that  they  should  not 
answer  the  question  or  determine  the  privileges  oi  Parliament, 
for  this  was  a  duty  belonging  to  the  Lords  ;^^  it  was  added, 
however,  that  if  the  same  question  were  raised  in  a  lower  court 
(except  in  case  of  treason,  felony,  breach  of  the  peace,  or  a  con- 
demnation by  Parliament),  the  prisoner  would  be  released  to 
attend  Parliament.  The  Lords  declined  to  take  the  same  course 
and  commanded  the  Commons  to  elect  another  speaker. 

^3  Hale's  Jvirisprudence,  p.  59. 

^*  House  of  Lords,  pp.  36-7. 

"Maitland,  C.  H.,  p.  84. 

'« Rot.  Pari.  5  Henry  IV,  Nos.  11  and  12. 

'^  See  page  4  supra. 

"  Rot.  Pari.  31  Henry  VI,  Nos.  25,  26,  27,  and  28. 

'•The  Lords,  "to  have  knowlegge  what  the  lawe  will  wey  in  that 
behalve,  opened  and  declared  to  the  Justices  the  premissez,  and  axed  of 
theym  whether  the  seid  Thomas  ought  to  be  delivered  from  prison,  by  force 
and  vertue  of  the  Privelegge  of  Parlement  or  noo.    To  the  which  question, 


HISTORY  OF  THE  ADVISORY  OPINION  21 

In  the  Duke  of  York's  Case  (1460)®°  which  involved  the 
title  to  the  throne,  the  judges  were  only  too  glad  to  keep  out 
of  the  controversy  altogether,  and  volunteered  no  advice  at 
all.  Two  interesting  points  may  be  noted.  They  were  not 
merely  asked  for  an  opinion  as  to  the  state  of  the  law,  but  were 
requested  ''sadly  to  take  avisament  therin,  and  to  serche  and 
fynde  all  such  objections  as  myght  be  leyde  ayenst  the  same, 
in  fortefying  of  the  Kynges  right."  This  brought  forth  the 
excuse  that  they  "have  to  determyne  such  maters  as  com  before 
theym  in  the  lawe,  betwene  partie  and  partie,  and  in  such  maters 
as  been  between  partie  and  partie  they  may  not  be  of  Coun- 
seill."®^  But  they  pleaded  also  that  "in  especiall  the  mater 
was  so  high,  and  touched  the  Kyngs  high  estate  and  regalie, 
which  is  above  the  lawe  and  passed  ther  lernyng  .  .  .  and 
therfore  they  humble  bysought  all  the  Lordes,  to  have  theym 
utterly  excused  of  eny  avyce  or  Counseill,  by  theym  to  be 
yeven  in  that  matier." 

But  in  spite  of  these  protests,  there  can  be  little  doubt 
that  in  ordinary  cases  the  judges  were  consulted  frequently. 

the  chefe  Justicez  in  the  name  of  all  the  Justicez,  after  sadde  communica- 
tion and  mature  deliberation  hadde  amonge  theim,  aunswered  and  said; 
that  they  ought  not  to  aunswere  to  that  question,  for  it  hath  not  be  used 
afore  tyme,  that  the  Justicez  shuld  in  eny  wyse  determine  the  Privelegge  of 
this  high  Court  of  Parlement;  for  it  is  so  high  and  so  mighty  in  his  nature, 
that  it  may  make  lawe,  and  that  that  is  lawe  it  may  make  noo  lawe;  and 
the  determination  and  knowlegge  of  that  Privelegge  belongeth  to  the  Lordes 
of  the  Parlement  and  not  to  the  Justices." 

8°  Rot.  Pari.  39  Henry  VI,  No.  12.     Fortescue,  384. 

*^  Baldwin  (King's  Council,  p.  122),  I  think,  misunderstands  this.  He 
interprets  the  second  "partie  and  partie"  as  referring  to  poUtical  parties, 
whereas  the  emphasis  is  upon  the  contrast  between  determining  matters 
before  them  and  merely  acting  as  counsel.  He  also  says  the  judges  were 
rebuked  for  their  refusal  because  "they  were  the  King's  particular  coun- 
cillors and  therefore  they  had  their  fees  and  wages."  But  from  the  Rolls 
it  seems  this  applies  only  to  the  Sergeants  and  Attorney  who  were  also  simi- 
moned  as  "  Conseillers. "  This  last  point  is  not  quite  clear,  but  there  seems 
to  be  no  record  of  further  replies  from  the  judges. 


22        DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

During  the  seventeenth  century,  it  seems  they  were  in  constant 
attendance  upon  the  House  of  Lords,  were  even  required  to 
get  a  leave  of  absence  to  go  upon  their  circuits,  and  were  severely 
reprimanded  for  a  failure  to  be  present  when  their  assistance 
was  required.^2  Coke  recognizes  the  practice,^  though  with 
the  qualification  that  it  does  not  belong  to  them  (the  judges) 
"to  judge  of  any  law,  custome  or  priviledge  of  Parliament." 
It  will  be  remembered  that  the  words  of  their  writ  of  summons^ 
do  not  even  admit  of  this  reservation.  Apparently  the  opinions 
asked  by  the  House  of  Lords  on  the  petition  for  a  writ  of  habeas 
corpus  in  the  Aylesbury  Case^  were  granted  without  question. 
Again  in  1760^^  the  Lords  asked  whether  an  earl  whom  they 
had  convicted  of  murder  should  receive  judgment  under  a  cer- 
tain statute,  and  whether,  if  the  day  first  set  for  execution  lapsed 
without  execution,  a  new  day  could  be  set;  and  the  judges 
replied  promptly,  the  House  of  Lords  acting  in  accordance 
with  their  opinion. 

Just  before  the  American  Revolution,  then,  it  was  well 
settled  that  the  judges  were,  in  general,  bound  to  give  advice 
requested  on  questions  of  law  arising  in  cases  before  the  House 
of  Lords  as  a  court.  It  is  doubtful  whether,  in  strict  law,  they 
had  a  right  to  refuse  under  any  circumstances.  They  had  given 
opinions  in  concrete  (not  hypothetical)  cases,  though  this  prac- 
tice did  not  persist  much  longer.  They  had  disclaimed  any 
jurisdiction  in  important  cases  of  a  political  nature  and  in 
cases  involving  questions  of  Parliamentary  privileges,  though 
even  here  advice  was  appended  to  their  disclaimers.  There 
is  no  example  of  a  failure  to  advise  except  the  Duke  of  York's 
Case,  and  in  that  the  House  of  Lords  requested  much  more 
than  judicial  advice;  even  there  the  alternative  excuse  offered 

^^Macqueen,  House  of  Lords,  pp.  37-40. 

MInst.    IV,    p.    50. 

"  See  Note  67  on  page  19  supra. 

«  14  East,  92n.     14  Howell's  St.  Tr.,  695. 

"Ferrer's  Case.    Foster's  Crown  Law,  p.  138. 


HISTORY  OF  THE  ADVISORY  OPINION  23 

by  the  judges  did  not  deny  their  obligation  to  answer,  but  as- 
serted their  inability  and  lack  of  jurisdiction  of  such  matters. 
The  binding  effect  of  their  answers  has  not  been  discussed. 
Of  course  they  would  not  be  binding  on  the  House  of  Lords 
because  it  was  a  superior  court;  and  the  question  of  their  binding 
effect  upon  the  judges  could  hardly  arise,  as  the  cases  in  which 
they  were  given  could  not  very  well  come  before  the  judges 
later. 

A  brief  survey  of  the  nineteenth  century  practice  will  not  be 
amiss.  It  was  accepted  doctrine  before  the  Judicature  Act 
that  the  constitutional  advisers  of  the  House  of  Lords  included 
the  judges  of  the  King's  Bench  and  of  the  Common  Pleas,  the 
Barons  of  the  Exchequer  and  the  Master  of  the  Rolls.^^  Since 
1875,  semble,  the  justices  of  the  High  Court  have  succeeded  to 
this  duty.^^  They  do  not  attend  regularly  and  usually  by 
special  order  only.^^  Since  it  has  become  the  settled  practice 
of  the  House  that  only  "law  lords"  are  to  sit  in  appeal  cases, 
and  especially  since  the  legal  abiUty  of  the  court  has  been 
assured  by  the  statute  of  1876  which  requires  that  three  "law 
lords"  must  be  present,  the  consultation  of  the  judges  has  be- 
come increasingly  infrequent.  It  took  place  in  one  hundred 
and  twenty-five  cases  from  1827  to  1899,  only  four  of  which 
were  later  than  1876.®°  The  last  important  example  within 
my  knowledge  is  the  great  case  of  Allen  v.  Flood,  (1898)  A.  C. 
1;  but  the  judges  were  also  consulted  in  The  Trial  of  Earl 
RusseU,  (1901)  A.  C.  446. 

Of  course  the  opinions  of  the  judges  are  not  binding  upon 
the  House,  even  when  they  are  unanimous.  "The  House 
pays  great  regard  to  the  opinions  of  the  Judges,  especially 
when  concurrent;  but  the  House  cannot  transfer  to  others  the 

*'Macqueen,  House  of  Lords,  p.  35. 
"Maitland,  C.  H.,  p.  84. 

*'  For  the  details  as  to  procedure  when  the  judges  are  summoned  to 
attend  to  give  advice,  see  Macqueen,  House  of  Lords,  pp.  256-8,  416. 
»°V.  V.  Veeder  in  Harv.  L.  R.  XHI,  358. 


24        DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

constitutional  responsibility  which  attaches  to  the  adjudication 
of  causes  in  the  court  of  last  resort.  "^^  But  as  a  matter  of  fact 
it  is  claimed  that  only  in  five  cases  in  recent  times  has  the 
House  given  judgment  contrary  to  the  opinion  of  a  majority 
of  the  judges.®^ 

In  contrast  to  the  earlier  practice,  explicit  decisions  of  con- 
crete cases  are  never  given.  The  judges  do  not  even  suggest 
judgments,  but  merely  give  their  opinions  on  abstract  questions 
of  law  propounded  by  the  House;  ''but  the  questions  propound- 
ed are  usually  so  framed  as  to  embrace  abstractedly  all  the 
difiiculties  of  the  particular  case  in  hand.  "^^  On  the  other 
hand,  it  seems  to  be  the  better  opinion  that  the  questions  put 
to  the  judges  must  relate  to  the  case  before  the  House.  In 
Bright  V.  Hutton^^  an  appeal  was  taken  on  the  question  of 
the  amount  of  contribution  payable  by  a  company  in  winding- 
up  proceedings.  The  judges  were  ordered  to  attend,  and 
when  the  case  came  up  for  argument,  the  Lords  requested  a 
preliminary  discussion  as  to  whether  the  company  in  question 
came  within  the  Winding-Up  Acts.  Both  counsel  protested 
that  this  was  not  within  the  scope  of  the  appeal  and  Lord 
Brougham  replied:  "We  have  now  the  advantage  of  the  at- 
tendance of  the  Judges;  we  frequently  put  questions  to  them 
besides  those  which  are  the  questions  in  the  cause.  .  .  .     We 

"  Macqueen,  House  of  Lords,  pp.  49-50.  Compare  the  words  of 
Eldon,  L.  C,  in  Head  v.  Head  (1  Turner  and  RusseU,  138,  at  140):  "The 
answers  given  by  the  Judges  therefore,  although  entitled  to  the  greatest 
respect,  as  being  their  opinions  communicated  to  the  highest  tribunal  in 
the  Kingdom,  are  not  to  be  considered  as  judicial  decisions." 

^  V.  V.  Veeder  in  Harv.  L.  R.  XIII,  358. 

^  Macqueen,  House  of  Lords,  pp.  47-8.  And  compare  Head  v.  Head 
(1  Turner  and  Russell,  138),  per  Eldon,  L.  C,  at  p.  140:  "Now  it  is  well 
known  that  the  questions  proposed  to  the  Judges  by  the  House  of  Lords, 
though  made  to  approximate  so  nearly  to  the  questions  to  be  determined,  as 
to  enable  the  House  to  form  a  judgment  on  the  case  actually  before  it,  can- 
not be  the  very  questions  which  the  House  is  called  upon  to  decide." 

"3  H.  of  L.,  341. 


HISTORY  OF  THE  ADVISORY  OPINION  25 

are  not  bound  by  the  form  of  an  appeal  as  to  any  questions 
we  may  think  fit  to  put  to  the  Judges."  The  point  was  then 
argued  and  the  judges  held  that  the  company  came  within 
the  acts.  Lord  Brougham  then  explained  that  if  the  judges 
had  held  the  contrary  opinion  and  the  House  had  agreed  with 
them,  they  should  not  have  gone  on  with  the  case,  but  as  it  was, 
argument  would  be  heard  on  the  point  under  appeal.  So  it 
appears  that  the  question  first  submitted  to  the  judges  here 
was  really  necessary  to  the  case,  and  Lord  Brougham,  in  the 
words  cited  above,  apparently  only  meant  that  the  House 
could  put  questions  collateral  to  the  case  in  hand.  It  is  un- 
hesitatingly stated  by  the  House  in  (1912)  A.  C.  571,  at  585, 
that  the  House  may  ask  "such  questions  as  it  may  think  neces- 
sary for  the  decision  of  the  particular  case.  That  is  a  very 
diflFerent  thing  from  asking  questions  unconnected  with  a  pend- 
ing cause  as  to  the  state  or  effect  of  the  law  in  general." 

4.  The  Judges  as  Advisers  to  the  House  of  Lords  in  its  Legis- 
lative Capacity.  In  the  Anglo-Norman  period,  as  observed 
above  (see  p.  1),  large  powers  of  legislation  were  vested  in  the 
king  and  his  Magnum  Concilium ^^  The  judges,  as  members 
of  this  Concilium  J  not  only  advised  as  to  legislation,  then,  but 
actually  participated  in  its  enactment.  Legally,  their  power 
was  coextensive  with  that  of  the  peers;  they  were  all  summoned 
for  the  same  purpose,  namely,  colloquium  habere  et  tractatum. 
Possibly  the  omission  of  "ceteris^*  and  "fide  et  homagio"  and  the 
insertion  of  "ceterisque  de  consilio  nostra, ^^  are  to  be  interpreted 
as  modifying  their  perfect  equaUty  with  the  Lords  in  debate.^ 
From  whatever  cause,  it  is  true  that  in  the  course  of  time  the 
judges  confined  their  participation  to  interpreting  existing  law 
and  giving  advice  in  the  framing  of  pending  legislation,  but 
did  not  share  in  its  enactment. ^^  This  seems  to  be  an  excellent 
arrangement,  the  judges  performing  those  functions  for  which 

»*  And  see  Hallam,  Mid.  Ages,  III,  p.  143. 
»«Stubbs,  C.  H.,  Ill,  p.  395. 
"  Stubbs,  C.  H.,  m,  pp.  445-6. 


26   DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

they  were  best  fitted,  while  the  Lords  passed  upon  the  questions 
of  pohcy  involved.  Before  long  the  Commons  were  admitted 
to  share  in  the  work  of  legislation,^^  but  this  had  no  effect  on 
the  advisory  position  of  the  judges. 

During  the  seventeenth  and  eighteenth  centuries  they 
were  consulted  quite  freely,  especially  on  questions  concerning 
pending  legislation,  or  possible  legislation.  When  the  Commons 
in  1614  passed  a  declaration  against  the  king's  right  to  impose 
taxes  at  the  outposts  and  asked  the  Lords  for  a  conference 
on  the  subject,  the  Lords  first  requested  the  opinion  of  the 
judges  on  the  subject  of  these  impositions.  The  opinion  was 
refused,  but,  as  Hallam  conjectures,^^  this  may  have  been  due 
to  Coke's  dislike  for  Egerton,  L.  C,  who  had  moved  to  consult 
the  judges.^°o  On  the  other  hand,  the  judges  freely  gave  their 
opinions  on  the  construction  of  pending  bills  on  November  30, 
1621  (on  the  third  reading  of  the  Ordinance  Act),  on  March  9, 
1623  (on  the  third  reading  of  a  Lord's  Day  Act),  on  March  10, 
1623  (after  the  passage  of  a  defective  bill  by  the  Lords),  on 
May  1,  1624  (on  the  Bill  of  Grace  for  Wales),  on  July  9,  1669 
(on  the  second  reading  of  a  bill  for  reversing  a  King's  Bench 
judgment),  on  May  9th  and  12th,  1690  (on  the  third  reading 
of  Commons  amendments  to  a  bill;  here  they  suggested  the 
insertion  of  certain  words)  on  May  12,  1711  (on  the  second 
reading  of  a  bill  re  Mandamus  and  Quo  Warranto),  on  March  6, 
1717  (on  the  Forfeited  Estates  Bill),  on  December  22,  1718 
(on  the  Schism  Act),  on  January  17,  1719  (on  a  Corporation 
Bill),  on  May  18,  1720  (an  adverse  opinion  on  an  Insolvent 
Debtors  Bill),  and  on  April  29,  1723  (on  a  bill  to  inflict  pains 
and  penalities  on  John  Plunket).^''!  In  the  case  of  the  Schism 
Act,  the  Lords  said  it  was  "usual  to  ask  the  Judges  opinions  of 

98Stubbs,  C.  H.,  II,  pp.  257  sqq. 

"  C.  H.,  I,  p.  340n. 

loo  Lords'   Journal,   May   23,    1614. 

"^  Macqueen,  House  of  Lords,  pp.  53-57. 


HISTORY  OF  THE  ADVISORY  OPINION  27 

the  consequences  of  repealing  or  making  any  law."^^^  What 
appears  to  be  an  opinion  concerning  possible  legislation  is  the 
case  in  Michaelmas  Vacation,  1721,  when  the  House  asked  the 
judges  whether  the  king  could  prohibit  the  building  of  war  ships 
in  his  dominions;  the  judges  were  of  opinion  that  he  could  not. 
"This  question  was  asked  on  occasion  of  ships  built  and  sold 
to  the  Czar,  being  complained  of  by  the  Minister  of  Sweden. "^^ 
The  only  hint  of  a  refusal  to  reply  by  the  judges  is  the  case  in 
May,  1758,  where  Lord  Chief  Justice  Willes  told  the  House 
the  judges  were  ready  to  answer  nine  of  the  ten  questions  sub- 
mitted, but  asked  to  be  excused  from  answering  number  3 
(concerning  the  operation  of  a  proposed  bill  and  its  effect  upon 
the  subject),  in  which  request  the  House  acquiesced.^*^  The 
House,  it  seems,  was  both  considerate  and  careful  in  exercising 
the  privilege  of  consultation.  In  the  Schism  Act  case,^°^  the 
Lords  opposed  the  second  question  as  originally  framed,  as 
touching  upon  "what  might  judicially  come  in  question  in 
Westminster  Hall,"  and  the  Lord  Chancellor  altered  the  ques- 
tion; and  certain  members  of  the  House  objected  to  the  third 
question  for  a  similar  reason,  and  it  was  voted  to  withdraw  it. 
Macqueen^^  cites  two  cases  (in  1783  and  1788)  in  which  motions 
to  refer  questions  to  the  judges  were  voted  down.  In  at  least 
one  case,  ^°^  the  judges  excused  themselves  from  replying  to  a 
question,  about  a  pending  bill,  "it  being  likely  the  case  would 
come  before  them  in  the  courts  below."  The  House  was  not 
favorably  impressed  with  this  attitude,  however,  and  the 
"matter  of  the  Judges"  was  debated  on  an  appomted  day  and 
its  further  consideration  only  prevented  by  a  prorogation. 
In  1760,  then,  it  is  an  unquestioned  rule  that  the  judges 
are  to  answer  inquiries  put  to  them  concerning  bills  already 

10=  Fortescue,  385. 

i°3  Fortescue,  388. 

1"  Macqueen,  House  of  Lords,  p.  57. 

1*  Ubi  supra. 

1"  House  of  Lords,  p.  57. 

1°^  Macqueen,  House  of  Lords,  p.  52. 


28        DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

introduced  into  the  House  of  Lords,  or  in  contemplation. 
There  is  a  Httle  authority  for  saying  that  they  may  refuse  to 
pass  on  questions  which  will  come  before  them  in  their  judicial 
capacity.  The  House  on  the  whole  is  sparing  with  its  refer- 
ences, and  usually  follows  the  advice  of  the  judges. 

New  questions  were  raised  in  the  nineteenth  century.  In 
1834,  an  appUcation  was  made  to  Parliament  for  a  bill  to  incor- 
porate a  certain  L.  and  W.  B.  Company.  Such  a  bill  passed 
the  House  of  Commons  and  had  come  up  for  a  second  reading 
in  the  House  of  Lords,  when  it  was  moved  that  counsel  be  heard 
on  the  subject  and  that  the  judges  be  ordered  to  attend.  A 
day  was  set  and  a  question  stated:  "Are  the  provisions  of  this 
bill  inconsistent  with  the  Bank  of  England's  rights  as  secured 
to  it  under  the  following  acts"  (naming  seven  statutes)?  The 
judges  attended,  but  after  a  short  conference  together,  reported 
(through  Tindal,  C.  J.)  that  "His  Majesty's  Judges,  after  con- 
sidering the  question  which  has  been  proposed  to  them,  find  it 
proposed  in  terms  which  render  it  doubtful  whether  it  is  a  ques- 
tion confined  to  the  strict  legal  construction  of  existing  Acts  of 
Parliament;  and  they  therefore,  .  .  .  request  to  be  excused 
from  giving  an  answer.  "^"^^  With  due  respect  for  the  learned 
judges  who  shared  in  that  opinion,  it  is  submitted,  on  the  facts 
disclosed  above,  that  this  position  is  untenable.  The  construc- 
tion of  pending  bills  has  been  the  most  frequent  practice  of  the 
judges  as  legislative  advisers  to  the  House  of  Lords.  A  more 
elaborate  demurrer  was  advanced  in  McNaghten's  Case 
(1843).^^^  A  verdict  of  Not  Guilty  had  been  returned  to  an 
indictment  for  murder,  the  defense  being  insanity;  and  the 
question  of  the  extent  of  insanity  that  would  be  a  good  defense 
to  such  an  indictment  was  made  the  subject  of  a  debate  in  the 
House  of  Lords.  They  summoned  the  judges  to  attend  on  a 
given  day,  and  put  to  them  five  questions  on  the  existing  law  of 
insanity  as  a  defense.     Maule,  J.,  objected  to  answering  on 

"*  In  re  London  and  Westminster  Bank,  2  CI.  and  Fin.  19 L 
i°»  10  CI.  and  Fin.  200. 


HISTORY  OF  THE  ADVISORY  OPINION  29 

three  grounds:  (1)  The  generality  of  the  questions,  not  referring 
to  any  particular  case.  (2)  The  lack  of  arguments  by  counsel. 
(3)  The  embarrassment  that  might  be  caused  in  the  administra- 
tion of  justice.^^^  However,  since  his  brethren  disagreed  with 
him  on  this  point,  he  submitted  an  answer  in  general  terms. 
Tindal,  C.  J.,  and  the  other  judges  subscribed  to  the  vahdity 
of  these  objections,  but  thought  an  answer  should  be  given. 
In  commenting  on  the  answers,^"  the  Lords  with  one  voice 
asserted  their  undoubted  right  to  require  opinions  on  ab- 
stract questions  of  law;  such  questions  are  not  mere  matters 
of  speculation,  for  the  House  of  Lords  may  be  called  on  to 
change  the  law.  Lord  Cottenham  indulges  in  the  dictum  that 
opinions  on  a  pending  bill  cannot  be  required,  but  he  was  un- 
doubtedly relying  on  In  re  London  and  Westminster  Bank. 
Perhaps  McNaghten's  Case  is  the  last  instance  of  legislative 

^^°The  questions  raised  here  are  especially  interesting  in  view  of  the 
principles  developed  by  State  courts  in  the  United  States — see  later.  Per- 
haps they  are  the  result  of  American  influence. 

"^  "Generally  speaking,  it  is  most  important  that  in  questions  put  for 
the  consideration  of  the  Judges,  they  should  have  aU  that  assistance  which 
is  afforded  to  them  by  an  argument  by  counsel:  but  at  the  same  time  there 
can  be  no  doubt  of  your  Lordships'  right  to  put  .  .  .  abstract  questions  of 
law  to  the  Judges,  the  answer  to  which  might  be  necessary  to  your  Lord- 
ships in  your  legislative  capacity." — ^per  Lord  Brougham. 

"It  was  most  fit  that  the  opinions  of  the  Judges  should  be  asked  on 
these  matters,  the  settUng  of  which  is  not  a  mere  matter  of  speculation; 
for  your  Lordships  may  be  called  on,  in  your  legislative  capacity,  to  change 
the  law.  ■' — ^per  Lord  Campbell, 

"It  is  true  they  cannot  be  required  to  say  what  would  be  the  construc- 
tion of  a  Bill,  not  in  existence  as  a  law  at  the  moment  at  which  the  question 
is  put  to  them;  but  they  may  be  called  on  to  assist  your  Lordships,  in  de- 
claring their  opinions  upon  abstract  questions  of  existing  law." — per  Lord 
Cottenham. 

Lord  Wynford  also  says  that  he  never  doubted  the  power  of  the  Lords 
to  ask  opinions  on  questions  of  existing  law,  and  that  he  gave  such  opinions 
himself  when  in  the  Common  Pleas;  and  the  Lord  Chancellor  agreed  as  to 
all  these  comments. 


30   DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

consultation.  Cases  in  the  last  century  are  rare.^^^  But  the 
right  to  such  consultation  doubtless  still  exists.^^^  At  least 
the  Judicial  Committee  thought  so  in  1912:"*  "There  is  also 
authority  for  saying  that  the  House  of  Lords  possesses  in  its 
legislative  capacity  a  right  to  ask  the  judges  what  the  law  is 
in  order  to  better  inform  itself  how,  if  at  all,  the  law  should  be 
altered.  The  last  instance  of  this  being  done  occurred  some 
fifty  years  ago,"^  when  the  right  was  expressly  asserted  by  Lords 
of  undoubtedly  high  authority. " 

B.  In  United  States 
1.  When  Authorized  hy  the  Constitution 

a.  Massachusetts.  The  advisory  opinion  was  formally  intro- 
duced into  the  American  constitutional  system  by  the  Massachu- 
setts Constitutional  Convention  of  1780."^  Even  before  this 
time  it  is  quite  possible  that  irregular  soHcitation  of  judicial 
advice  was  not  unknown."^  Perhaps,  too,  the  early  colonial 
practice  of  consulting  the  Plymouth  and  Massachusetts  Bay 
clergy  may  have  helped  to  famiHarize  the  people  with  the 
advisory  system."^    Washburn  tells  us"^  that  formal  appeals 

"2Cf.  the  opinion  of  the  court  in  126  Mass.  557;  "The  right  of  the 
House  of  Lords  to  put  abstract  questions  of  law  to  the  judges,  the  answer 
to  which  might  be  necessary  to  the  House  in  its  legislative  capacity,  has 
been  often  acted  on  in  modern  times." 

"3  Though  Maitland  apparently  has  forgotten  it — C.  H.,  p.  84. 

"« (1912)  A.  C.  571,  at  585-6. 

"^This  probably  refers  to  McNaghten's  Case. 

"'  For  the  text  of  the  provision  see  Appendix  I. 

"^"In  Massachusetts,  in  colonial  days,  the  governor  and  the  council 
claimed  and  exercised  the  same  prerogative  (i.e.,  as  the  king  and  House  of 
Lords  in  England)  and  the  colonial  judges  seem  to  have  acquiesced. "  Emery, 
C.  J.,  in  2  Maine  Law  Review,  1. 

"*  I  am  indebted  to  Dr.  C.  K.  Maxson  of  the  University  of  Pennsyl- 
vania for  this  suggestion.  *Tt  was  the  custom  of  the  General  Court,"  he 
writes,  "to  refer  questions  of  law  to  the  preachers  who  wrote  out  learned 
opinions.  Their  citations  were,  of  course,  mostly  from  the  Mosaic  law  and 
other  parts  of  the  Bible.  You  may  see  many  illustrations  of  this  custom  in 
the  Bradford  history.    The  same  custom  obtained  in  Massachusetts  Bay. " 

"'Judicial  History  of  Massachusetts,  p.  21. 


HISTORY  OF  THE  ADVISORY  OPINION  31 

for  advice  were  made  to  the  clergy  by  magistrates  "imtil  1682, 
when,  for  the  last  time,  they  were  consulted  in  relation  to  the 
surrender  of  the  charter  (1  Hutch.  303,  n.)."  Unfortunately 
the  only  examples  he  gives  are  cases  of  volimtary  interference 
and  gratuitous  advice  from  the  preachers  of  the  colony.  But 
whether  soHcited  or  not,  such  advice  was  doubtless  very  desir- 
able, for  apparently  no  one  connected  with  the  court  in  those 
early  days  had  had  a  legal  education.^^  Still  the  influence 
of  this  practice  upon  the  introduction  of  the  full-fledged  ad- 
visory opinion  in  1780  in  all  probabiUty  was  relatively  insigni- 
ficant. Under  the  Royal  governors  there  certainly  was  no 
magisterial  consultation  of  the  clergy.  Justice  was  almost 
entirely  in  the  hands  of  the  governor,  and  members  of  his  council 
commonly  acted  in  a  judicial  capacity.^^  The  judiciary  was 
first  clearly  separated  in  theory  from  the  executive  and  legis- 
lature in  the  charter  of  1691;^^  but  even  after  this,  the  same 
person  could  be  both  judge  and  councilor  at  the  same  time.^^ 
Executive  consultation  of  such  an  ill-defined  and  immature 
judiciary  passes  almost  unquestioned,  as  we  saw  in  the  case  of 
England.  So  the  seed  of  the  advisory  opinion  in  Massachusetts 
may  have  been  sown  both  by  ecclesiastical  and  governmental 
practice  in  the  colony. 

However  this  may  be,  there  can  be  Httle  doubt  that  the 
Massachusetts  advisory  opinion  owes  its  form  at  least  to  the 
influence  of  Enghsh  practice.  It  bears  many  evidences  of  that 
influence.  In  the  first  place,  the  clause  as  first  reported  to  the 
convention  limited  the  consultative  power  to  the  governor  and 
council,  and  upper  house,  the  counter-parts  of  the  king  and 
House  of  Lords,  and  the  privilege  was  only  extended  to  the 
house  of  representatives  by  amendment  on  the  floor  of  the 


"°/6«f.,   Chapters   1-5,   passim. 
^Ubid.,  Chapter  6. 


^  Ihid.,  p.  139 
"^IMd.yp.  159, 


32    DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

convention.^^  Again,  as  has  been  observed  already,  the 
English  judges  were  on  record  as  objecting  to  the  giving  of 
opinions  (at  least  in  administrative  matters)  except  in  cases  of 
manifest  and  urgent  necessity ;^^  while  Hargrave^^^  had  stated 
that  the  right  of  extra-judicial  interrogation  was  "a  right  to 
be  understood  with  many  exceptions,  and  such  as  ought  to  be 
exercised  with  great  reserve."  Correspondingly,  opinions  of 
the  Massachusetts  justices  can  be  required  only  "  upon  important 
questions  of  law  and  upon  solemn  occasions. "  Note,  too,  that 
as  there  is  no  distinction  between  legislative  and  judicial  ques- 
tions in  England  either  in  the  case  of  the  king  or  of  the  House 
of  Lords,  so  there  is  no  distinction  here.  Of  course,  the  adop- 
tion of  the  principle  of  separation  of  powers  left  few  judicial 
duties  to  either  the  governor  or  the  legislature. 

These  intrinsic  evidences  of  English  influence  are  corro- 
borated by  the  circumstances  attending  the  formulation  of 
this  article  of  the  constitution.  In  its  original  form  it  would 
seem  to  have  been  the  work  of  John  Adams.  The  convention 
chose  a  committee  of  thirty  (or  thirty-one?)  to  draft  a  con- 
stitution after  general  discussion  from  the  floor.  This  com- 
mittee appointed  a  sub-committee  of  three — James  Bowdoin, 
Samuel  Adams  and  John  Adams — and  they  in  turn  delegated 
the  task  of  preparing  the  draft  to  John  Adams.^"  with  the 
exception  of  a  few  minor  alterations  in  committee,  the  consti- 
tution reported  to  the  convention  was  his  work.  He  frankly 
claims  to  be  the  drafter  of  the  Massachusetts  constitution  of 
1780.^2^  The  importance  of  his  authorship,  for  the  present 
purpose,  is  that  he  was  a  lawyer  and  well  versed  in  English 

12*  See  Jour,  of  Mass.  Const.  Conv.  of  1779-80,  pp.  211,  85-86. 

126  Mansfield's  Note  in  Lord  Sackville's  Case,  2  Eden,  371. 

i2«Co.  Lilt.,  110.    Hargr.  n.  5. 

1"  Jour.  Mass.  Const.  Conv.  1779-80,  pp.  28-30;  Adams'  Works,  IV, 
pp.  215-216. 

W8  Walsh,  Political  Science  of  John  Adams,  p.  7n;  and  see  Adams* 
Works  IV,  pp.  185-187,  193-200,  203-209  and  219-267;  also  his  correspon- 
dence of  this  period  in  Vol.  IX  of  his  Works. 


HISTORY  OF  THE  ADVISORY  OPINION  33 

judicial  practice.^^  In  his  discussion  with  General  Brattle 
concerning  the  Independence  of  the  Judiciary,  he  mentions 
a  secret  consultation  of  the  judges  by  the  king  in  Sir  Edward 
Hale's  case.^°  As  his  grandson  says,  "his  education,  his 
professional  studies,  and  his  habits  of  generalization  led  him 
to  favor  the  main  features  of  the  British  form  of  government.  "^^ 
When  we  couple  these  facts  with  the  pecuharly  EngUsh  touches 
of  the  article,  as  pointed  out  above,  we  may  fairly  conclude 
that  John  Adams  fathered  the  advisory  opinion  in  the  Mas- 
sachusetts constitution,  and  that  it  was  a  deUberate  formula- 
tion of  the  existing  EngHsh  practice  as  he  understood  it. 

It  may  be  thought  queer  that  the  advisory  opinion  clause 
should  be  adopted  by  a  convention  so  dominated  by  the  theory 
of  Montesquieu.  Probably  there  was  no  intention  to  interfere 
with  the  independence  of  the  judiciary  ;^^2  the  framers  of  the 
clause  aimed  merely  at  securing  coordination  between  the 
departments  of  government,  and  promoting  a  uniformity  of 
interpretation  that  would  make  for  greater  justice  and  effi- 
ciency.^ Certainly,  as  will  be  seen,  the  device  in  operation 
has  not  impaired  the  independence  of  the  judiciary  to  any 
appreciable  extent.  Whether  it  affects  the  independence  of 
the  other  departments  is  a  question  that  will  be  discussed  later. 

The  first  opinion  under  the  advisory  opinion  clause  was 
given  in  1781,  at  the  joint  request  of  the  senate  and  house  of 
representatives.^^  The  judges  expressed  themselves  as  being 
honored  by  the  reference,  and  their  advice  was  followed  by 

^-^  Adams'  Works,  III,  pp.  519  sqq.,  and  passim. 

^^^lUd.,  Ill,  pp.  529-530. 

"^  Life  of  John  Adams  by  Charles  Francis  Adams  in  Adams*  Works,  I, 
at  p.  287. 

"-  See  The  Duty  of  Judges  as  Constitutional  Advisers,  by  H.  A.  Du- 
buque, in  Am.  L.  Rev.  XXIV,  369,  at  p.  374. 

^'^  Note  that  John  Adams  himself  was  a  strong  advocate  of  the  separa- 
tion of  powers.  See  his  Works,  passim,  and  Walsh's  Political  Science  of 
John  Adams,  pp.  20  sqq. 

I'*  Opin.  of  Justices,  126  Mass.  547. 


34        DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

the  houses  in  their  subsequent  action.  In  1784  a  question  was 
put  by  the  senate  as  to  whether  the  legislature  had  a  consti- 
tutional right  to  fill  vacancies  in  the  council,  and  the  judges 
made  a  brief  reply .^^  The  next  case  (1787)  of  which  I  have 
found  any  record  was  a  reference  by  the  legislature  of  a  memorial 
from  the  French  consul;  the  judges,  "for  substantial  reasons," 
declined  giving  an  extra-judicial  opinion.  The  same  year, 
an  opinion  was  given  to  the  senate  as  to  the  legislature's  power 
to  commute  punishment."^  In  1791,  the  senate  submitted 
several  questions  concerning  the  passage  of  bills,  and  in  1807 
the  governor  referred  a  question  on  elections."^  These  six 
were  the  only  cases  under  the  clause  before  1810.  Only  eleven 
in  all  are  reported  from  1780  to  1830.  Since  that  time  opinions 
have  been  requested  with  increasing  frequency.  The  total 
number  to  December  1,  1917,  is  one  hundred  and  five.  Of 
these  the  house  and  senate  jointly  are  responsible  for  ten,  the 
house  alone  for  forty,  the  senate  alone  for  twenty-three,  the 
governor  and  council  for  twenty-four,  the  governor  alone  for 
six,  and  the  council  alone  for  two. 

Apparently  the  judges  and  reporters  did  not  attach  much 
importance  to  the  early  opinions.  In  no  case  do  they  appear 
in  their  proper  chronological  place  in  the  reports.  The  1781 
case  was  not  incorporated  therein  till  1879."^  Two  cases  (1791 
and  1807)  were  transferred  from  the  newspapers  to  3  Massachu- 
setts 567,  568,  in  1807.139    The  1784  case  and  one  of  the  1787 

is^Opin.  of  Justices,  14  Mass.  470. 

i3«  Opin.  of  Justices,  14  Mass.  472. 

"'  Opin.s  of  Justices,  3  Mass.  567,  568. 

138  Opin.  of  Justices,  126  Mass.  547. 

"8  An  explanatory  note  by  the  reporter  says:  "The  two  following 
documents  containing  the  solemn  opinion  of  the  court  upon  questions 
duly  submitted  to  their  consideration,  pursuant  to  the  constitution,  chapter 
3,  article  2,  it  was  though  expedient  to  transfer  them  from  the  newspapers, 
in  which  they  were  published,  into  the  Reports,  that  a  more  easy  and  general 
access  may  be  had  to  them,  should  any  future  discussions  arise  on  the  same 
subjects. " 


HISTORY  OF  THE  ADVISORY  OPINION  35 

cases  were  included  in  14  Massachusetts  in  1817;  the  other  1787 
case  is  not  yet  on  the  official  records.  Even  very  much  later 
opinions  are  not  in  their  proper  order.  One  of  1825  is  reported 
in  1829,"°  one  of  1840  in  1849/^  one  of  1833  in  1850/^  one  of 
1837  in  1861,i«  and  one  of  1839  in  1850."* 

Yet  in  spite  of  this  apparent  neglect  and  the  infrequent 
appUcation  of  the  clause  there  was  a  strong  feeUng  in  the  con- 
vention of  1820  that  it  should  be  repealed.  Among  the  dele- 
gates of  this  convention  were  many  prominent  members  of 
the  bench  and  bar — Parker,  who  was  chief  justice  1814-30; 
Jackson,  who  was  justice  1813-23;  Shaw,  who  was  to  be  chief 
justice  from  1830  to  1860;  Lincohi,  who  became  justice  in  1824; 
Story,  a  justice  of  the  United  States  Supreme  Court;  Daniel 
Webster;  and  John  Adams,  who  is  reported  to  have  drafted 
the  constitution  of  1780.  The  committee  on  the  judiciary, 
through  its  chairman,  Mr.  Justice  Story,  reported  a  recom- 
mendation that  the  advisory  opinion  scheme  be  dropped.^*^ 
In  arguing  for  the  recommendation.  Story  emphasized  the  im- 
portance that  the  judiciary  should  be  independent,  and  the 
great  danger  that  they  would  have  to  give  opinions  in  cases 
"  exclusively  of  a  pohtical  character. "  Furthermore  the  scheme 
deprived  individuals  of  the  right  of  being  heard  and  of  the 
right  of  trial  by  jury.  In  times  of  pohtical  excitement  the 
judges  might  be  consulted  when  it  was  certain  their  opinions 
would  not  suit  the  popular  sentiment  and  "with  the  very  view 
to  make  them  odious  and  to  effect  their  removal  from  office.^** 

"oOpin.  of  Justices,  7  Pick.  125,  130ii. 

1"  Opin.  of  Justices,  3  Cush.  584. 

i«  Opin.  of  Justices,  6  Cush,  573. 

1"  Opin.  of  Justices,  1  AUen  197n. 

^**  Opin.  of  Justices,  6  Cush.  575. 

»«Deb.  Mass.  Conv.  1820,  489-90. 

^*^  Probably  he  is  referring  to  the  opinion  in  8  Mass.  548,  of  which  ex- 
Justice  Morton  said,  in  1853:  "When  the  war  of  1812  was  in  progress,  a 
question  arose  which  agitated  the  whole  community,  a  question  about 
which  there  was  more  excitement  than  there  ever  had  been  before,  or  will 


36        DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

Also,  "as  the  constitution  now  stands,  the  judges  are  bound 
to  give  their  opinions  if  insisted  upon,  even  in  a  case  where 
private  rights  are  involved,  and  without  the  advantage  of  an 
argument."  He  indicated  that  the  recommendation  was 
practically  unanimous,  and,  without  further  debate,  it  was  agreed 
to  in  the  convention  "by  a  large  majority."  The  salient  parts 
of  Story's  argument  were  incorporated  in  an  Address  to  the 
People"^  which  accompanied  the  proposed  amendment.  Un- 
fortunately we  are  unable  to  know  the  sentiment  of  the  people 
of  Massachusetts  as  to  the  advisory  opinion  at  that  time,  for 
the  suggested  repeal  was  combined  with  a  provision  that  all 
judicial  officers  may  be  removed  by  the  governor  with  consent 
of  council  upon  the  address  of  a  majority  of  each  house  of  the 
legislature,  after  notice  to  the  person  concerned  (a  provision 
that  was  debated  at  great  length  and  met  with  much  opposition 
in  the  convention),  the  two  provisions  making  up  Amendment 
IX.  The  vote  on  this  amendment  was  12,471  pro,  14,518 
contra.^*^ 

The  attempt  at  repeal  was  repeated  in  the  Convention  of 
1853,  and  apparently  again  at  the  instigation  of  the  legal  pro- 
be likely  to  exist  for  half  a  century  to  come;  the  question  in  relation  to  calling 
out  the  militia  was  got  before  the  supreme  court  in  some  manner,  I  do  not 
recollect  how,  and  they  gave  an  opinion  which  produced  an  immense  ex- 
citement in  the  community,  and  which  was  arraigned  throughout  this  state, 
and  throughout  the  United  States,  which  opinion  was  reversed  by  the  whole 
court  of  the  United  States,  and  which  opinion  would  have  destroyed  the 
utility  and  confidence  in  this  court  in  this  Commonwealth,  had  it  not  been 
foimded  upon  a  basis  which  could  not  be  shaken,  and  had  it  not  been  sup- 
ported by  a  law-loving  community."     Deb.  Mass.  Conv.  1853,  II,  694. 

1*7  Deb.  Mass.  Conv.  1820,  629. 

"*  Ibid.,  633.  Jameson  (Constitutional  Conventions,  p.  669)  com- 
ments: "In  Massachusetts,  therefore,  a  proposition  which  received  the 
approval  of  the  leading  lawyers  and  judges  of  the  Convention,  of  all  parties, 
and  which  involved  simply  a  legal  or  constitutional  question,  was  voted 
down  by  a  majority  consisting  largely  of  farmers,  mechanics,  and  trades- 
men. "  But  Jameson  overlooks  the  possible  effect  of  the  second  proposed 
change  in  defeating  the  whole  amendment. 


HISTORY  OF  THE  ADVISORY  OPINION  37 

fession.  Marcus  Morton,  Jr.,  (who  was  elevated  to  the  Supreme 
Bench  in  1869)  introduced  an  order  that  the  committee  on 
the  judiciary  inquire  into  the  expediency  of  retaining  the 
advisory  opinion  clause. ^^^  This  committee  was  composed  of 
Marcus  Morton,  Sr.,  who  had  been  a  justice  of  the  Supreme 
Court  1825-39;  Greenleaf,  the  official  reporter  in  Maine  1820- 
32;  Lord,  a  Supreme  Court  justice  1859-75;  Chapin,  a  lawyer, 
who  became  probate  judge  in  1858;  Choate,  a  lawyer;  and  eight 
members  of  unknown  qualifications. ^^°  The  chairman  (Mar- 
cus Morton,  Sr.)  reported  a  recommendation  that  the  gover- 
nor and  legislature  should  not  have  the  right  to  require 
opinions  of  the  judges.^^^  In  opening  the  debate  he  emphasized 
the  separation  of  powers  principle,  the  importance  of  keeping 
the  judiciary  out  of  the  *' vortex  of  politics,"  and  the  ex  parte 
character  of  opinions  involving  private  rights. ^^^  Mr.  Lord 
added  that  the  clause  permitted  "the  legislative  or  executive 
department  of  the  government  to  put,  in  many  important  in- 
stances, the  whole  responsibiUty  of  their  action  upon  the  judicial 
department"  and  besides  "it  is  very  Uttle  different  from  per- 
mitting the  judiciary  to  control  the  legislative  and  executive 
powers."^  In  reply,  statements  were  made  by  Mr.  Warner, 
Mr.  Hooper  and  Mr.  French  that  the  scheme  had  worked  well 
in  practice,  that  no  evil  had  resulted,  that  it  secured  a  desirable 
uniformity  of  action  in  questions  under  the  constitution  and  that 
"  the  supreme  court  of  the  State  can  render  no  better  service  to 
the  Commonwealth  than  in  answering  such  questions  as  may 
be  propounded  to  them  by  the  legislature."^^  The  recom- 
mendation came  from  a  unanimous  committee  and  was  adopted 
by  the  convention  after  a  short  debate.    The  sentiment  of 

^"  Deb.  Mass.  Conv.  1853,  I,  160. 

^^°Ibid.,  I,  89,  and  Appleton's  Cyc.  of  Amer.  Biog.  sub  nom. 

»» Ibid.,  I,  447. 

^Ubid.,  II,  685. 

"^Ibid.,  II,  687. 

^Ibid.,  II,  686. 


38        DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

the  people  is  again  unascertainable,  however,  for  the  repeal 
was  only  one  of  many  changes  in  the  revised  constitution, 
which  was  rejected,  63,222  to  68,150.^  Probably  it  was  not 
considered  a  point  of  great  importance,  for  it  is  not  discussed 
at  all  in  a  pamphlet  "On  the  Proposed  Constitution  1853" 
by  G.  T.  Curtis,  Samuel  Hoar,  Marcus  Morton,  C.  F.  Adams 
and    others. 

The  advisory  opinion  has  now  become  an  unquestioned 
fixture  in  the  Massachusetts  system.  There  is  no  disposition  on 
the  part  of  the  governor  or  legislature  to  forego  the  advantages 
of  its  use.  Since  1890,  fifty-one  such  opinions  have  been  reported 
— twenty-nine  of  them  since  January  1,  1910.  Certain  well- 
defined  rules  of  construction  and  apphcation  have  been  worked 
out,  some  of  them  Hmiting  the  clause  in  important  particulars; 
most  of  this  elaboration  belongs  to  the  period  since  1877,  when 
the  justices,  in  an  opinion  of  almost  revolutionary  character, 
asserted  a  claim  to  considerable  discretion  in  refusing  their 
advice.^^  Several  principles  regarding  the  juridical  nature 
of  advisory  opinions  have  been  clearly  enunciated.  These 
will  be  disclosed  in  the  detailed  analysis  to  follow. 

As  to  the  effect  of  the  scheme  in  Massachusetts,  I  can  not 
do  better  than  quote  from  a  recent  book  from  the  pen  of  a 
Massachusetts  writer:  "The  system  of  advisory  opinions  has 
also  worked  well.  The  Massachusetts  supreme  court  vetoes 
fewer  legislative  enactments  than  the  supreme  court  of  any 
other  of  the  larger  states.  This  relatively  infrequent  use  of 
the  judicial  veto  may  be  partly  explained  by  the  absence  of 
most  of  the  constitutional  limitations  upon  legislative  powers 
and  procedure  which  abound  in  the  constitutions  of  many 
states.  But  it  is  to  no  inconsiderable  degree  the  result  of  the 
legislative  and  executive  practice  of  calling  upon  the  supreme 
court  for  their  opinion  concerning  the  constitutionahty  of 
proposed  measures,  when  their  constitutionahty  is  questionable, 

i«  Ibid.,  Ill,  768. 

^  Opin.  of  Justices,  122  Mass.  600.    See  pp.  167-70  infra. 


HISTORY  OF  THE  ADVISORY  OPINION  39 

in  advance  of  their  enactment  into  law.  Often  there  are  several 
such  requests  for  advisory  opinions  in  the  course  of  a  single 
legislative  session.  The  opinion  of  the  court  is  invariably 
accepted.  When  the  opinion  is  adverse  to  the  constitutionality 
of  a  proposed  measure,  the  legislature  may,  if  it  chooses,  pro- 
ceed thereafter  by  means  of  a  constitutional  amendment.  This 
has  been  done  in  several  cases.  More  frequently  the  measure 
is  dropped.  "^^ 

b.  New  Hampshire.  New  Hampshire  evidently  borrowed 
the  clause  from  Massachusetts,  for  the  text  in  the  constitu- 
tion of  1784^^^  follows  the  wording  of  the  constitution  of  the 
latter  state,  except  that  "governor"  is  replaced  by  "president" 
and  "supreme  judicial  court"  by  "superior  court."  The 
clause  is  repeated  in  the  constitution  of  1792,  the  word  "gover- 
nor" now  being  used,  and  this  wording  is  unchanged  in  the  con- 
stitution of   1902. 

No  trace  of  an  appUcation  of  the  scheme  is  discoverable 
before  1816,  when  the  governor  and  council  appealed  to  the 
justices  to  determine  the  constitutionaUty  of  the  legislation 
amending  the  Dartmouth  College  charter,  and  the  power  of 
the  governor  and  council  under  such  legislation.  A  reply  to 
the  first  question  was  refused  on  the  ground  that  it  affected 
private  rights  which  might  later  come  before  the  court  in  a 
regular  action.  As  was  the  case  in  Massachusetts,  this  opinion 
was  not  reported  until  much  later.^^^  Only  four  opinions 
are  recorded  as  given  before  1850  and  but  nine  more  from 
1850  to  1870.  The  total  to  December  1,  1917  is  forty-nine. 
Of  these,  twenty  were  in  response  to  interrogations  from  the 
house,  nine  were  given  at  the  request  of  the  senate,  eighteen 

"'Holcombe,  State  Govt.,  p.  381. 

^*^  For  the  text  of  the  provision  see  Appendix  I. 

^58  Opin.  of  the  Court,  62  N.  H.  704,  (1882).  Three  other  opinions  are 
not  in  chronological  order:  one  of  1865  was  reported  only  in  1874  (Opin. 
of  Justices,  53  N.  H.  634);  one  of  1877  in  1882  (Opin.  of  Justices,  62  N.  H. 
706);  and  one  of  1889  in  1912  (Opin.  of  Justices,  76  N.  H.  612). 


40   DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

at  the  request  of  the  governor  and  council,  and  two  at  the  re- 
quest of  the  governor  alone. 

The  interpretation  and  apphcation  of  the  clause  have  dif- 
fered from  the  Massachusetts  practice  only  in  that  the  judges 
have  been  more  generous  in  exercising  the  discretion  claimed 
for  them,  as  will  be  seen  later.  The  writer  has  been  unable 
to  ascertain  the  effect  of  opinions  in  determining  the  action 
of  the  executive  and  legislative  departments,  but  the  inclusion 
of  the  clause  in  the  constitution  of  1902  would  go  far  to  indicate 
a  general  satisfaction  with  its  operation  in  the  past;  for  in 
general,  the  judiciary  committees  of  constitutional  conventions, 
composed  mostly  of  legally  trained  men,  oppose  the  practice 
as  contrary  to  certain  traditional  theories  of  law  and  the  judicial 
function.  This  has  been  illustrated  in  the  conventions  of  1820 
and  1853  in  Massachusetts,  and  will  be  further  exempHfied 
in  other  cases. 

c.  Maine.  The  next  State  to  adopt  the  advisory  opinion 
was  Maine,  in  the  constitution  framed  upon  its  separation 
from  Massachusetts  in  1820.^^°  The  influence  of  the  consti- 
tution of  the  older  State  would  naturally  be  an  important 
factor  in  determining  the  content  of  this  new  charter  of  govern- 
ment. But  it  is  interesting  to  observe  that  the  new  State 
made  the  clause  part  of  its  constitutional  system  the  very  year 
when  a  convention  in  the  parent  State  was  urging  that  it  be  elim- 
inated from  theirs.  The  wording  has  been  modified  slightly 
however.  One  change  should  be  noted.  The  Massachusetts 
clause  gives  the  power  of  consultation  to  ''each  branch  of  the 
legislature,  as  well  as  the  governor  and  council."  The  gover- 
nor alone  had  exercised  the  power  in  1807,^®^  and  several  other 
replies  were  given,  either  to  the  governor  or  to  the  council,^^^ 
before  the  justices  expressed  a  doubt  as  to  whether  the  consti- 

*®°  For  the  text  of  the  provision  see  Appendix  I. 
"1  Opin.  of  Justices,  3  Mass.  568. 

"^In  re  Opin.  of  the  Justices,  211  Mass.  620,  and  In  re  Opin.  of  the 
Justices,  211  Mass.  630. 


HISTORY  OF  THE  ADVISORY  OPINION  41 

tution  authorized  such  replies,  a  doubt  resolved  against  the 
governor  in  1913.^^  Under  the  Maine  constitution  this  ques- 
tion cannot  arise,  for  authorized  requests  may  come  from  "the 
governor,  council,  senate  or  house  of  representatives."  The 
clause,  as  reported  from  the  committee,  was  adopted  unani- 
mously by  the  convention. ^^ 

The  executive  and  legislative  departments  were  not  slow 
to  avail  themselves  of  the  advantages  of  judicial  advice.  The 
first  opinion  was  given  in  1821,  and  twelve  are  on  record  before 
1840.  The  use  of  the  scheme  has  been  steady,  though  not 
very  frequent,  and  the  cases  are  well  scattered.  During  the 
ninety-seven  years  of  its  operation,  fifty-six  opinions  in  all  have 
been  reported.  These  are  distributed  among  the  different 
interrogators  as  follows:  house,  sixteen;  senate,  eleven;  gover- 
nor, seventeen;  council,  seven;  governor  and  council  jointly, 
five.  They  have  been  reported  with  reasonable  promptness, 
though  the  opinions  in  3  Maine,  477,  and  3  Maine,  481,  are  of 
earlier  date  than  the  opinion  in  2  Maine,  439.^^ 

No  information  is  available  as  to  the  success  or  failure  of 
the  device  in  Maine,  but  the  writer  is  not  aware  of  any  attempt 
to  do  away  with  it.  The  judges  have  seemed  favorably  dis- 
posed to  it  and  there  are  very  few  refusals  to  answer,  as  com- 
pared with  other  States.  The  interpretation  of  the  clause  has 
been  similar  to  that  of  Massachusetts  and  New  Hampshire, 
with  the  exception  of  the  doctrine  of  70  Maine,  570,  which  can 
better  be  considered  at  another  place. 

d.  Rhode  Island.  When  Rhode  Island  tardily  substituted 
for  her  charter  of  1663  a  constitution  (ru  1842)  of  more  modem 
content,  she  was  sufficiently  impressed  by  the  advisory  opinion 
scheme  of  her  New  England  neighbors,^^®  to  borrow  it  for  her 

^^  In  re  Opin.  of  the  Jiistices,  214  Mass.  602. 

^  Debates,  etc.  of  Conv.  of  1819,  Perley,  p.  175. 

*"Also  an  opinion  of  1871 — Opin.s  of  the  Justices  of  the  Supreme 
Judicial  Court,  64  Me.  588— was  accidentally  overlooked  until   1875. 

^«*  Thayer  (Cases  on  Constitutional  Law,  I,  p.  183  n.)  thinks  it  quite 
possible  that  the  judges  in  Rhode  Island  at  least  gave  extra-judicial  advice 


42  DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

own  use.^®^  But  important  changes  appear  in  the  version  of 
this  State.  No  council  was  created  by  the  new  constitution, 
so  the  power  of  consultation  rests  in  the  governor  or  either 
house  of  the  general  assembly.  But  the  "important  question 
and  solemn  occasion"  qualification  has  disappeared;  the  judges 
are  to  give  their  opinion  upon  ''any  question  of  law."  The 
importance  of  this  change  may  be  seen  from  the  fact  that, 
though  references  on  rather  trivial  and  unnecessary  points 
have  not  been  lacking,  there  is  no  record  of  a  refusal  to  give 
an  opinion  requested.  The  desirability  of  so  comprehensive 
a  requirement  may  well  be  questioned  (see  Chap.  III).  Also, 
the  constitution  explicitly  states  that  the  opinion  must  be  in 
writing.  This  is  probably  a  cautious  superfluity,  for  the  exist- 
ing practice  was  to  give  written  opinions,  however  brief,  and 
there  is  no  reason  to  suppose  that  the  careful  lawyers  who  at- 
tain the  highest  judicial  honors  in  our  States  would  be  inclined 
to   do   otherwise. 

No  opinions  were  requested  for  twelve  years,  as  far  as  the 
records  disclose,  the  first  one  being  Opinion  of  the  Supreme 
Court,  3  Rhode  Island,  299.  The  forty-six  cases  in  the  reports 
are  well  distributed  from  1854  to  date,  except  for  a  gap  from  1858 
to  1877.  They  are  reported  promptly,  with  one  exception.^^^ 
The  legislative  department  seemingly  has  not  taken  much  inter- 
est in  the  scheme — one  request  has  come  from  the  general 
assembly,  three  from  the  house  and  nine  from  the  senate,  the 
governor  being  responsible  for  the  other  thirty-three.  The 
cases  are  of  a  humdrum  type,  and  the  opinions  commendably 
brief    but    monotonously    uninteresting.     The    justices    have 

in  colonial  times,  inferring  this  from  the  statement  of  Howell,  J.  in  Trevett 
V.  Weeden,  Thayer,  Cases,  I,  p.  73:  "The  court  was  ever  ready,  as  consti- 
tuting the  legal  counsellors  of  the  State,  to  render  every  kind  of  assistance 
to  the  legislative,  in  framing  new  or  repeaUng  former  laws." 

"^  For  the  text  of  the  provision  see  Appendix  I. 

"« In  re  Election  of  School  Committee,  28  R.  I.  629.  Also  the  arrange- 
ment of  the  opinions  in  4  R.  I.  is  not  chronological. 


HISTORY  OF  THE  ADVISORY  OPINION  43 

accepted  the  clause  as  it  stands,  and  anyone  is  free  to  indulge 
in  its  interpretation  without  reference  to  judicial  precedent. 
The  opinions  are  void  of  any  contributions  to  the  theory  of  the 
judiciary  department  in  the  American  system.  Perhaps  this 
is  the  inevitable  result  of  a  clause  as  broad  as  this  one  is;  perhaps 
it  testifies  to  a  more  generous  cooperation  of  the  judges  with 
the  other  departments.  In  any  case,  it  seems  to  be  the  opinion 
in  Rhode  Island  that  the  scheme  is  a  success,  for  the  advisory 
opinion  was  reaffirmed  in  a  judicial  amendment  (Amendment 
XII,  Section  2)  which  was  adopted  November  3,  1903}^^ 

e.  Missouri.  Heretofore  the  advisory  opinion  has  been 
confined  to  the  New  England  States.  The  historical  explana- 
tion of  its  long  leap  to  the  Mississippi  Valley  is  wanting.  Possi- 
bly it  was  due  to  the  efforts  of  lawyers  or  others  who  had  been 
brought  up  in  the  original  habitats  of  the  device,  and  later  turned 
their  faces  westward.  This  first  transplanting  was  an  unsuc- 
cessful experiment,  for  environment  and  culture  were  both 
adverse.  An  adequate  conception  of  the  origin,  history  and 
purpose  of  extra-judicial  consultation  was  lacking  and  the 
deficiency  foredoomed  failure. 

The  clause  in  question  was  incorporated  into  the  constitu- 
tion in  1865.^^°  Two  new  elements  were  introduced.  Opinions 
must  be  given  only  upon  "  important  questions  of  constitutional 
law,  and  upon  solemn  occasions."  The  effect  of  this  change 
must  not  be  over-estimated.  Most  questions  of  statutory 
law,  if  ''important,"  could  be  brought  within  the  "solemn 
occasion"  provision,  if  the  latter  were  not  too  strictly  con- 
strued. Quite  likely  the  chief  intention  of  the  framers  of  this 
clause  was  to  provide  a  means  for  the  judges  to  pass  upon  the 
constitutionality  of  measures  before,  instead  of  after,  enactment. 
The  other  new  element  is  a  direction  that  all  opinions  given  un- 
der the  clause  "shall  be  pubhshed  in  connection  with  the  re- 
ported decisions  of  said  court. "     Probably  this  was  unnecessary 

»«8  Thorpe  VI,  p.  3240. 

^^°  For  the  text  of  the  provision  see  Appyendix  I. 


44        DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

in  the  light  of  modem  practice,  but  it  is  worth  while  to  make 
that  practice  certain  on  this  point.  If  such  opinions  are  to  be 
given  and  are  to  be  the  basis  of  legislative  or  executive  action 
in  many  cases  of  a  difficult  nature,  it  is  by  all  means  desirable 
that  the  public  should  have  the  means  of  knowing  their  con- 
tent. It  is  important  that  succeeding  legislatures  and  execu- 
tives should  know  that  certain  measures  are  inacceptable  and 
why,  that  certain  policies  of  their  predecessors  were  determined 
by  constitutional  considerations  which  will  probably  continue 
to  influence  the  judicial  department.  It  is  important  that  the 
judges  themselves  and  the  legal  profession  should  be  able  to 
ascertain  how  great  constitutional  jurists  have  dealt  with 
problems,  even  though  their  consideration  has  been  extra- 
judicial and  is  not  binding  upon  the  courts. 

The  first  request^^^  under  the  clause  came  from  the  governor 
on  November  27,  1865,  and  was  answered  very  concisely  with- 
out comment.  The  second^^^  was  from  the  senate,  on  Decem- 
ber 9,  1865,  and,  though  in  more  general  terms,  did  not  differ 
essentially  in  nature  from  the  previous  request;  both  asked 
for  opinions  as  to  the  power  of  the  legislature  to  pass  certain 
acts,  and  as  to  the  construction  of  a  constitutional  clause.  The 
judges  refused  to  reply  and  proceeded  to  give  a  detailed  inter- 
pretation of  the  advisory  opinion  provision.  After  declaring 
that  the  judges  must  determine  what  are  ''questions  of  con- 
stitutional law"  and  what  are  ''solemn  occasions,"  they  con- 
strue the  clause  as  if  these  two  requirements  must  concur  in 
order  to  bring  the  question  within  the  section.  A  question 
must  be  "a  question  of  law  only,  and  it  must  arise  upon  the 
Constitution  alone.  It  can  scarcely  be  any  other  than  some 
question  of  the  proper  construction  and  true  meaning  of  some 
provision,  clause,  or  words,  contained  in  the  Constitution; 
and  it  must  be  in  its  own  nature,  a  judicial  question,  the  final 

"^Advisory  Constitutional  Opin.  of  the  Judges,  37  Mo.  129. 
"^  Advisory  Constitutional  Opin.  of  the  Judges,  37  Mo.  135. 


HISTORY  OF  THE  ADVISORY  OPINION  45 

determination  of  which,  by  the  organic  frame  of  our  Govern- 
ment, properly  belongs  to  the  Judiciary.  .  .  .  Such  questions 
should  be  important  in  reference  to  the  pubUc  interest,  and 
the  necessary  and  immediate  action  of  the  Legislative  or  Exec- 
utive branch  of  the  Government,  upon  some  matter  of  unusual 
magnitude  and  solemn  concern  for  the  public  good."  The 
judges'  right  to  decide  whether  a  request  was  within  the  section 
seems  to  have  been  exercised  very  whimsically,  for  the  next 
three  cases^^^  scarcely  stand  the  tests  suggested  above;  yet 
answers  were  given.  But  in  51  Missouri,  586  (a  case  which  is 
with  difficulty  distinguishable  from  that  in  37  Missouri,  139) 
a  reply  was  refused  and  the  above  principles  reaffirmed.^^^ 
Two  opinions  foUow^^^  in  which  the  questions  again  fail  to 
measure  up  to  the  standards  set  in  37  Missouri,  135,  but  proved 
acceptable.  Then  in  1874  the  judges  once  more  refuse  to  give 
their  opinions,  in  the  one  case  (with  some  reason)  to  the  house 
of  representatives ,^^^  in  the  other  to  the  governor.^^^  In  the 
latter  case  still  another  criterion  is  suggested — questions  must 
not  relate  to  the  constitutionahty  of  an  act  already  on  the 
statute  books.  Such  questions  had  already  been  answered  in 
two  cases.^^^ 

The  house  of  representatives  was  the  source  of  two  references 
to  the  judges,  the  senate  three,  and  the  governor  five.  Of 
these  ten  requests,  four  were  denied  an  opinion.    Under  these 

*^3  Advisory  Constitutional  Opin.  of  the  Judges,  37  Mo.  139.  Opinion 
of  Court  in  Response  to  Governor,  43  Mo.  351.  Opinion  of  Court  in  Re- 
sponse to  Governor,  49  Mo.  216. 

"*  See  criticism  of  H.  A.  Dubuque  in  Am.  L.  R.  XXIV,  pp.  389-90. 

"*  Opin.  of  Supreme  Court  Judges  on  Township  Organization  Law, 
55  Mo.  295  (this  case  is  not  reported  in  chronological  order);  Opin.  of  the 
Judges  in  Response  to  a  Resolution  of  the  Senate,  55  Mo.  215. 

^""  Opin.  of  the  Court  in  Response  to  the  Resolution  of  the  General 
Assembly,   55   Mo.   497. 

"^  In  the  Matter  of  Inquiries  Submitted  by  His  Excellency,  58  Mo.  369. 

"*  Advisory  Constitutional  Opin.  of  the  Judges,  37  Mo.  139;  Opin.  of 
Supreme  Court  Judges  on  Township  Organization  Law,  55  Mo.  295. 


46    DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

circumstances/^^  it  is  no  wonder  that  the  clause  was  omitted 
from  the  constitution  of  1875.  It  had  been  rendered  ineffective 
by  narrow  judicial  construction,  and  could  be  expected  to  be 
of  little  use  while  under  the  ban  of  judicial  disapproval  and 
the  disadvantage  of  judicial  misunderstanding.  In  12  Colorado, 
466,  and  again  in  3  South  Dakota,  548,  the  statement  is  made 
that  Missouri  "profited  by  her  experience"  and  excluded  the 
advisory  opinion  in  1875.  This  gives  a  false  impression  as 
to  the  character  of  the  advisory  opinion.  It  impUes  that  the 
people  of  Missouri  gave  it  a  fair  trial  and  found  it  undesirable. 
This  is  not  true.  It  did  not  have  a  fair  trial  in  Missouri,  first 
because  of  the  unfortunate  interpolation  of  the  word  "consti- 
tutional," and  secondly  because  the  judges  were  not  familiar 
with  its  history,  did  not  appreciate  its  usefulness,  and  main- 
tained an  attitude  of  hostility  throughout. 

f.  Florida.  The  next  appearance  of  the  advisory  opinion 
was  in  territory  equally  remote  from  New  England,  and  proba- 
bly unaffected  by  the  example  of  Missouri.  It  would  be  inter- 
esting to  know  how  such  a  heterogeneous  assemblage  as  the 
convention  of  1868  happened  to  include  so  unusual  a  provision 
in  their  proposed  constitution.  Very  probably  the  peculiar 
form  of  the  clause^^^  was  due  to  special  Reconstruction  con- 
ditions. The  governor  alone  is  permitted  to  interrogate 
the  justices.  Possibly  the  idea  was  to  promote  cooperation 
between  the  executive  and  judiciary,  and  facilitate  their  union 
against  a  legislature  that  promised  to  be  both  incompetent 
and  untrustworthy;  possibly  there  existed  an  apprehension 
that  if  they  attempted  to  succor  that  incompetence  by  permit- 
ting legislative  consultation  the  popular  organ  of  government 
might  pervert  the  privilege,  to  oppress  or  gain  control  of  the 
judiciary.  The  section  is  very  broad  in  other  respects,  permit- 
ting questions  "at  any  time  ...  as  to  the  interpretation 
of  any  portion  of  this  constitution,  or  upon  any  point  of  law." 

"8  Cf.  Thayer,  Legal  Essays,  p.  58. 

'*"  For  the  text  of  the  provision  see  Appendix  I. 


HISTORY  OF  THE  ADVISORY  OPINION  47 

As  in  Rhode  Island,  the  opinion  must  be  given  in  writing. 
Very  difficult  questions  were  put  to  the  justices  from  the 
start.  On  October  14,  1868,^^^  an  opinion  was  requested  as  to 
the  eligibihty  of  former  members  of  the  Secession  Convention 
to  hold  pubHc  office  under  the  existing  constitution.  In  Novem- 
ber of  the  same  year  an  extraordinary  session  of  the  legislature 
went  through  the  form  of  impeaching  the  governor,  and  the 
latter  promptly  asked  the  justices  if  the  proceedings  were 
vaUd.^^  Here,  as  was  pointed  out  in  the  opinion,  the  justices 
practically  had  to  decide  who  was  acting  governor  of  the  State, 
for  if  the  proceedings  were  vahd,  the  interrogator  was  not  en- 
titled to  an  answer  under  the  constitution.^^  The  possibiUty 
of  indirect  judicial  consultation  by  the  legislature  came  to 
light  in  January,  1869,  when  the  governor,  at  the  request  of  the 
legislature,  asked  an  opinion  as  to  the  legaUty  of  the  recent 
election  of  a  United  States  senator;  the  judges  protested  that 
this  was  not  a  matter  of  judicial  cognizance,  but  felt  bound 
under  the  constitution,  to  give  the  opinion  required.^^  Nine 
more  questions  were  referred  to  the  judges  during  the  next 
four  years,  one  of  them^^  again  at  the  instigation  of  the  legisla- 
ture. Apparently  it  had  become  obvious  that  the  form  of 
the  clause  was  too  Hberal,  for  it  was  materially  changed  by 
Amendment  XI  of  1875,^^  which  limited  requests  by  the  gover- 
nor to  questions  ''as  to  the  interpretation  of  any  portion  of 
this  constitution  upon  any  question  affecting  his  executive 
powers  and  duties.  "^^^  At  once  the  tide  was  checked.  There 
are  two  constitutional  questions  in  1875  and  another  in  1877; 
then  there  is  a  gap  of  ten  years.    No  more  questions  originating 

^*^In  the  Matter  of  the  Executive  Communication,  12  Fla.  651. 
"2  In  the  Matter  of  the  Executive  Communication,  12  Fla.  653. 
^"  See  Baldwin,  Amer.  Judiciary,  p.  49. 

^**  In  the  Matter  of  the  Executive  Communication,  12  Fla.  686. 
^"  In  the  Matter  of  the  Executive  Communication,  14  Fla.  320. 
^^  For  the  text  see  Appendix  I. 

**'  This  wording  is  continued  in  the  constitution  of  1885.     See  Appen- 
dix I. 


48         DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

with  the  legislature  are  found  in  the  reports.  With  the  re- 
sumption of  interrogatories  in  1887,  the  judges  promptly  availed 
themselves  of  the  restrictions  imposed  in  1875,  and  since  that 
time  have  refused  to  answer  in  nine  different  cases,  on  each 
occasion  demurring  that  the  question  was  not  one  involving 
the  powers  or  duties  of  the  executive  under  the  constitution. 
The  test  established  is  reasonably  clear,  but  the  judges  have 
not  been  consistent  in  applying  it;^^^  furthermore  they  have 
construed  the  provision  with  unnecessary  strictness,  thereby 
reducing  the  value  of  judicial  aid  to  the  executive  to  a  mini- 
mum. Most  of  the  questions  to  which  a  reply  can  be  expected, 
as  the  clause  is  interpreted,  could  as  well  be  answered  by  the 
attorney-general  or  some  other  legal  adviser.  It  is  practically 
impossible  to  get  an  opinion  as  to  the  constitutionality  of  a 
statute,  but  perhaps  this  is  not  undesirable,  as  long  as  it  is  not 
available  to  the  legislature  before  a  bill  has  become  law. 

Florida's  contribution  to  the  law  or  theory  of  the  advisory 
opinion  has  been  small,  because  of  the  limited  scope  of  the 
clause,  the  close  and  unsympathetic  construction  placed  upon 
it,  the  sameness  of  the  questions  submitted  and  the  brevity 
of  the  repUes.  Perhaps  the  privilege  has  been  a  source  of  satis- 
faction to  the  governor  occasionally,  but  it  is  hard  to  see  why 
the  legislature  has  not  proposed  an  amendment  which  would 
extend  the  same  favors  to  them.  The  people  were  evidently 
content  with  the  scheme  when  they  framed  and  adopted  the 
new  constitution  of  1885;  still  it  may  be  observed  that  the 
clause  had  not  been  used  for  eight  years,  and  that  refusals  to 
answer  were  as  yet  unknown. 

g.  Colorado.  There  is  strong  evidence  that  the  advisory 
opinion  found  its  way  into  the  constitutional  system  of  the 
Centennial  State,  not  as  an  experiment  but  as  a  remedy  for 
existing  ills.    It  does  not  appear  in  the  constitution  of  1876, 

^**  Cf .  In  re  Executive  Communication  Concerning  Powers  of  Legisla- 
ture, 23  Fla.  297,  and  In  re  Advisory  Opinion,  43  Fla.  305. 


HISTORY  OF  THE  ADVISORY  OPINION  49 

but  was  adopted  as  an  amendment  ten  years  later.^^^  In 
1889,  Chief  Justice  Helm  sketched  the  historical  setting  in 
the  following  words:  "The  successive  legislatures  meeting 
after  the  admission  of  Colorado  to  statehood  encountered 
great  difficulty  in  the  enactment  of  laws  on  account  of  numerous 
wise  but  troublesome  limitations  contained  in  the  constitution. 
Perplexity  and  confusion  arose  in  consequence  of  legislation 
which  this  court  was  ultimately  compelled  to  hold  invahd.  It 
was  deemed  expedient  that  each  house  should  have  the  privilege 
of  submitting  questions,  so  that  the  injurious  consequences 
arising  from  unconstitutional  legislation  might  be  avoided 
by  having  the  validity  of  proposed  legislative  acts  thus  deter- 
mined in  advance.  "^^'^  A  similar  picture  is  revealed  in  the 
advice  of  Governor  Eaton  to  the  first  legislature  assembling 
after  the  adoption  of  the  amendment:  "I  cannot  forbear  to 
direct  your  attention  once  more  to  the  damage  that  has  been 
done  the  State  by  the  enactment  of  laws  that  have  proved  to 
be  unconstitutional.  It  is  a  serious  matter,  for  it  breaks  down 
pubUc  confidence  in  the  wisdom  of  the  Legislature.  It  is  an 
error  easily  avoided.  The  Constitution  had  this  source  of 
danger  in  view  when  it  provided  that  on  grave  occasions  the 
Supreme  Court  shall  give  its  opinion  to  the  General  Assembly 
on  the  legality  of  any  legislation  contemplated.  The  long 
hst  of  laws  that  conflict  with  the  Constitution  are  a  significant 
comment  of  this  question.  It  seems  to  me  that  any  occasion 
where  there  is  the  least  doubt,  is  grave  enough  to  warrant 
vour  honorable  body  in  seeking  the  advice  of  the  court.  It 
would  save  the  people  great  expense  and  confusion  if  you 
would  habitually  do  so."^^^  And  corroborating  this  explanation 
is  the  fact  that  the  first  fifteen  references  (except  two  on  the 
procedure  of  legislative  enactment)  were  questions  as  to  the 
constitutionaUty  of  pending  or  possible  bills.     This  contempor- 

*"  For  the  text  of  the  provision  see  Appendix  I. 

19°  In  the  Matter  of  the  ConstitutionaUty  of  SB.  No.  65,  12  Colo.  466. 

"1  Message  of  Jan.  7,  1887.    SJ.  1887,  126. 


50   DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

aneous  construction  of  the  legislature  is  an  important  indication 
of  the  purpose  and  meaning  of  the  amendment.^^^  ]y[j-  q  y. 
A.  Greene,^^^  a  member  of  the  legislature  that  proposed  the 
amendment,  testified  to  the  same  effect:  ''The legislative  mind 
had  neither  a  negative  nor  an  affirmative  purpose  in  regard 
to  the  value  of  such  opinions  as  general  judicial  precedents. 
So  far  as  evidence  goes,  both  from  word  and  act,  the  Legislature 
was  confined  solely  to  the  purpose  of  avoiding  breakers  as  to 
its  own  acts."^^^  True,  in  a  later  passage  of  the  same  letter^^^ 
he  minimizes  preceding  legislative  troubles,  but  the  purpose 
of  the  legislators  in  proposing  the  amendment  is  the  point  in 
which  we  are  interested,  and  not  the  accuracy  of  Chief  Justice 
Helm's  representations  as  to  the  extent  of  judicial  repeal  from 
1876  to  1886. 

The  advisory  opinion  clause  was  one  of  several  changes  in 
the  judicial  article  of  the  constitution  proposed  in  SB.  No.  87, 
which  was  introduced  by  Senator  James  M.  Freeman,  on 
January  20,  1885.^^^    The  bill  was  referred  to  the  committee 

"2  In  the' Matter  of  the  Constitutionality  of  SB.  No.  65,  12  Colo.  466, 
at  p.  471. 

^*>3  Mr.  Greene  began  the  practice  of  law  in  1871,  was  elected  represen- 
tative to  the  Colorado  legislature  in  1881  and  1883,  and  a  senator  in  1885, 
He  was  chairman  of  the  judiciary  committees  of  both  house  and  senate  in 
turn,  and  was  a  member  of  that  committee  in  the  senate  when  the  proposed 
amendment  was  referred  to  it.  He  was  the  author  of  a  Digest  of  Supreme 
Court  Decisions  (Colo.)  and  occupied  the  chair  of  Roman  Law  in  the  State 
University. 

»"  From  a  letter  to  The  Nation  on  Jan.  2,  1890,  Vol.  50,  p.  50. 

196  "I  think  no  instance  can  be  found  in  which  a  competent  legislator 
has  been  seriously  troubled  (by  constitutional  limitations).  The  diflficulty 
in  the  way  of  needed  legislation  has  been  the  incorrigibihty  of  the  personnel 
of  the  Legislatures.  Instances  of  enactments  pronounced  void  or  inopera- 
tive on  constitutional  grounds  are  not  so  niunerous  as  might  be  inferred 
from  the  words  of  the  Judge;  and  the  cause  of  any  such  is  usually  traceable 
to  the  stupidity  of  its  framers."    Ibid. 

'^  SJ.  1885,  176. 


HISTORY  OF  THE  ADVISORY  OPINION  51 

on  the  judiciary^^^  which  redrafted  and  reported  it,  on  February 
23,  w-ithout  the  advisory  opinion  clause.  But  this  was  restored 
in  committee  of  the  whole  (March  4th). ^^^  The  bill  was  passed 
upon  March  9th,  all  the  members  of  the  judiciary  committee 
voting  for  it,  except  Senator  Chilcott.  Amendments  from 
the  house  compelled  it  to  run  the  gauntlet  of  a  conference 
committee,  and  final  passage  only  took  place  on  April  6th.i^® 
The  governor  promptly  approved  on  April  Vth.^^^  In  consider- 
ing the  Uttle  opposition  the  measure  met  in  the  legislatiure  and 
the  apparent  approval  of  the  legal  lights  therein,  it  must  be 
remembered  that  the  bill  contained  six  other  proposed  amend- 
ments, some  of  considerable  importance. ^^^  But  the  act  also 
provided  that  voters  could  designate  by  number  those  changes 
which  they  "dished  to  approve.  The  advisory  opinion  amend- 
ment was  adopted  on  November  2,  1886,  by  a  vote  of  16,858 
to  9,453.202 

The  wording  of  the  clause  calls  for  very  careful  considera- 
tion.2o^  First  of  all  it  is  the  "Supreme  Court"  and  not  the 
justices  that  is  to  give  the  opinion.  The  change  may  have 
been  fortuitous  and  without  any  special  meaning^^  but  it  did 
not  pass  unnoticed.  In  the  opinion  already  referred  to,^^^ 
Helm,  C.  J.,  makes  this  difference  in  wording  together  with 
the  required  pubHcity  of  opinions,  the  basis  of  his  conclusion 
that  the  opinions  "have  all  the  force  and  effect  of  judicial  pre- 

"'  A.  M.  Stevenson,  O.  F.  A.  Greene,  J.  M.  Freeman,  Mason  B.  Car- 
penter, George  M.  Chilcott,  Frank  Tilford,  A.  J.  Rising,  C.  C.  Parsons, 
and  B.  H.  Butcher. 

"*  Greene  says  by  "a  hasty  amendment."    The  Nation,  ubi  supra. 

i»»SJ.    1885,    1738. 

»««  Sess.  L.  1885,  145-7. 

*°*  The  disappearance  of  the  advisory  opinion  in  the  judiciary  committee 
and  Greene's  criticism  in  The  Nation,  already  referred  to,  indicate  the  usual 
disapproval  of  the  profession. 

2°2  Sess.  L.,  1887,  483;  and  MiU's  Annot.  Stat.  Colo.  I,  258. 

*°3  For  the  text  of  the  provision  see  Appendix  I. 

"^  O.  F.  A.  Greene  in  The  Nation,  ubi  supra. 

^^  In  the  Matter  of  the  Constitutionality  of  SB.  No.  65,  12  Colo.  466. 


52    DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

cedents."  The  correctness  of  his  position  will  be  examined 
later,  but  to  say  the  least  the  phrase  in  question  was  carelessly 
employed  if  the  intention  was  to  establish  a  purely  extra- 
judicial practice.  Hayt,  C.  J.,  reiterated  the  same  argument 
in  a  later  case^^o^  though  guardedly.  The  court  ultimately 
escaped  from  the  inconvenient  results  of  this  proposition, ^^^^ 
but  to  this  day  the  court  acts  as  a  whole  upon  questions  sub- 
mitted and  opinions  are  generally  rendered  "Per  Curiam. "  The 
second  notable  change  is  that  the  importance  of  the  questions 
and  the  solemnity  of  the  occasion  are  made  concurrent  condi- 
tions; both  requirements  must  be  satisfied  before  the  court  is 
required  to  answer.  As  already  remarked,  perhaps  in  common 
sense  this  quaUfication  is  unnecessarily  verbose,  for  the  solemnity 
of  an  occasion  ought  to  make  a  question  important,  as  a  question 
of  sufiicient  importance  might  well  give  solemnity  to  the  occa- 
sion of  its  consideration.  Still  if  the  judges  in  Colorado  had 
been  disposed  to  construe  the  clause  as  strictly  as  it  has  been 
done  elsewhere,  the  concurrence  of  these  requirements  would 
have  given  them  an  excellent  means  of  limiting  its  operation. 
Finally,  as  in  Missouri,  the  opinions  are  to  be  "pubHshed  in 
connection  with  the  reported  decisions  of  said  court."  As 
far  as  can  be  ascertained,  this  has  been  done  faithfully  and  with 
reasonable  promptness,  though  the  group  of  opinions  given  in 
each  session  of  the  legislature  is  not  chronologically  arranged 
within  itself,  for  the  first  few  sessions.^^^ 

The  privilege  of  judicial  consultation  has  been  more  widely 
used  in  Colorado  than  in  any  other  State.  Ninety-three  opin- 
ions in  all  have  been  recorded  in  a  period  of  thirty  years.  The 
governor  has  made  twenty-four  requests,  the  senate  thirty-six, 
the  house  thirty-two,  and  the  senate  and  house  jointly,  one. 

2'»  In  re  Priority  of  Legislative  Appropriations,  19  Colo.  58. 

2°'  In  re  Fire  and  Excise  Commissioners,  19  Colo.  482;  and  see  p.  229 
infra. 

208  The  inconvenient  failure  to  date  decisions  in  the  Colorado  reports 
makes  it  diflficiilt  to  check  up  a  matter  like  this. 


HISTORY  OF  THE  ADVISORY  OPINION  53 

Of  the  sixty-nine  for  which  the  inquiring  spirit  of  the  law- 
makers is  responsible,  seventeen  were  given  to  the  legislature 
of  1887,  thirteen  to  that  of  1889,  six  to  that  of  1891,  and  nme 
to  that  of  1893.  Recent  legislatures  have  Umited  themselves 
to  from  one  to  three  requests  each.  Possibly  this  is  due  to 
improvement  in  the  personnel  of  the  lawmaking  body;  cer- 
tainly if  there  is  not  greater  abiUty  there,  there  is  at  least  greater 
self-confidence.  It  would  be  very  interesting  to  know  whether 
the  decrease  in  the  number  of  advisory  opinions  asked  has  been 
preceded  or  accompanied  by  a  decrease  in  the  number  of  laws 
rejected  by  the  supreme  court  as  unconstitutional.  Refusals 
to  answer  have  been  unusually  numerous  also,  reaching  a  total 
of  twenty-four.  Sixteen  of  these,  beginning  with  the  very 
first  one,2°^  rested,  in  whole  or  in  part,  upon  the  proposition 
that  such  constitutional  provisions  could  not  be  considered  as 
authorizing  an  ex  parte  adjudication  of  private  rights.  This 
was  a  perfectly  simple  proposition,  which  had  already  been 
recognized  in  other  States,  and  which  was  quite  in  accord  with 
the  best  authority  in  the  Enghsh  antetype.  However,  the 
Colorado  justices  have  given  it  a  somewhat  forced  appHcation, 
and  the  frequent  recurrence  of  this  same  objection  must  be 
charged  partly  to  judicial  severity,  partly  to  legislative  stupid- 
ity. 

I  think  it  must  be  said  that  the  scheme,  on  the  whole,  has 
worked  well  in  Colorado.  As  will  appear  in  a  subsequent 
chapter,^^''  the  advice  of  the  court  is  usually  followed,  and  its 
opinions  have  been  a  very  valuable  aid  both  to  the  executive 
and  the  legislative  departments.  The  judicial  department  has 
suffered  no  loss  of  independence  or  prestige,  and  the  judicial 
functions  have  not  been  seriously  impaired.  I  am  not  aware 
that  any  movement  has  been  made  to  do  away  with  the  device 
and  it  is  to  be  hoped  that  failure  would  attend  any  such  attempt. 

2°^  In  the  Matter  of  Senate  Resolution  on  the  Subject  of  Irrigation, 
9  Colo.  620. 

210  See  pp.  154-158  injra. 


54        DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

h.  South  Dakota.  In  this  most  recent  adherent  to  the  ad- 
visory opinion,  as  in  the  New  England  States,  the  clause  formed 
part  of  the  original  constitution.^^!  For  some  reason  (perhaps 
because  of  the  notorious  flood  of  legislative  interrogations  in 
Colorado  in  1887  and  1889)  the  privilege  of  judicial  consultation 
is  limited  to  the  governor,  but  there  is  a  decided  improvement 
in  wording  upon  the  Florida  clause.  Opinions  may  be  required 
*'upon  important  questions  of  law  involved  in  the  exercise  of 
his  executive  powers  and  upon  solemn  occasions."  The  omis- 
sion of  the  word  "constitutional"  (responsible  for  six  of  the  nine 
refusals  in  Florida)  is  most  commendable.  Also  the  adjunction 
of  the  phrase  "and  upon  solemn  occasions"  as  an  independent 
class  of  cases  should  make  the  clause  much  more  flexible  and 
useful;  no  test  case  has  arisen,  but  the  judges  have  indicated 
ohiter  that  they  would  construe  this  dependently.^^^  However, 
the  opinion  given  in   1914^^^   is   contra. 

The  device  has  been  used  very  sparingly — twelve  times 
altogether,  and  only  once  since  1900.  The  judges  may  be 
responsible  for  this,  for  their  replies  have  not  been  cordial  and 
they  have  been  disposed  to  give  the  section  "a  restricted  rather 
than  an  enlarged  interpretation.  "^^^  The  proportion  of  refusals 
is  large — four  out  of  twelve  requests — but  they  have  not  been 
unreasonable;  more  would  have  been  quite  justifiable.^!^  Ap- 
parently the  court  has  construed  the  veto  power  of  the  governor 
as  an  executive  power ,^!^  which  really  permits  the  testing  of  a 
bill's  constitutionaUty  before  it  is  enacted  into  law.^^^  In  fact 
the  court  has  indicated  a  wiUingness  to  answer  purely  legisla- 

^  For  the  text  of  the  provision  see  Appendix  I. 

212  In  re  House  Resolution  No.  30,  10  S.  D.  249. 

2"  In  re  Opin.  of  Judges,  34  S.  D.  650. 

21*  In  re  Chap.  6,  Session  Laws  of  1890,  8  S.  D.  274. 

215  For  example  In  re  Limitation  of  Taxation,  3  S.  D.  456,  and  In  re 
State  Census,  6  S.  D.  540. 

2"  Cf.  In  re  Executive  Communication,  23  Fla.  297. 

2"  In  re  Limitation  of  Taxation,  3  S.  D.  456,  and  perhaps  In  re  State 
Warrants,  6  S.  D.  518.     Cf.  the  scheme  in  Panama  and  Colombia,  p.  94  infra. 


HISTORY  OF  THE  ADVISORY  OPINION  55 

tive  questions  as  long  as  private  property  rights  were  not 
involved.2^^  But  little  use  has  been  made  of  these  opportuni- 
ties. 

2.  When  Not  Authorized  by  the  Constitution 

It  is  not  the  purpose  of  this  section  to  examine  those  cases 
where  requests  have  come  from  sources  other  than  those 
empowered  to  interrogate  the  supreme  court  when  an  ad- 
visory opinion  clause  existed  in  the  constitution.^^^  But  in 
many  of  the  States,  there  have  been  occasions  when  the  need  of 
judicial  advice  was  so  keenly  felt,  that  attempts  have  been  made 
to  secure  such  assistance  without  any  constitutional  author- 
ization whatever.  Indeed  some  legislatures  have  tried  to  impose 
upon  the  judges  an  obHgation  to  answer  by  law.  Sometimes 
judicial  opinions  are  not  required  in  so  many  words,  but  extra- 
judicial duties  are  imposed  which  in  effect  involve  the  elicitation 
of  such  opinions,  purely  by  way  of  advice.  These  different  kinds 
of  extra-constitutional  judicial  consultation  will  be  reviewed  here 
briefly. 

a.  Federal  Government  of  the  United  States.  The  advan- 
tages of  judicial  assistance  in  legislative  matters  was  clearly 
seen  by  several  of  the  leaders  in  the  constitutional  convention 
of  1787.  Madison,  Ellsworth,  James  Wilson  and  Gouvemeur 
Morris  urgently  advocated  that  the  judiciary  be  joined  with 
the  executive  as  a  revisory  council  to  pass  upon  legislative  acts 
of  the  other  department.  Several  reasons  were  advanced  for 
such  a  scheme.  It  was  feared  that  a  popularly  elected  legis- 
lature would  be  too  strong  and  would  become  master  of  the 
other  departments  of  government.  The  executive  would  need 
the  reinforcement  of  the  judiciary^^  and  the  judiciary  must 
have  some  such  means  of  defending  itself  against  legislative 
encroachments.^^    Then,    too,    the    character    of    legislation 

"8  In  re  State  Census,  6  S.  D.  540. 
"'  See  pp.   152-4  injra. 

220  WUson,  in  5  EU.  Deb.  p.  121. 

221  Madison,  ibid.,  p.  178-80j 


56        DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

would  be  improved.  "The  aid  of  the  Judges  will  give  more 
wisdom  and  firmness  to  the  Executive.  They  will  possess  a 
systematic  and  accurate  knowledge  of  the  Laws,  which  the 
Executive  cannot  be  expected  always  to  possess."^  "It 
would  be  useful  to  the  Legislature  by  the  valuable  assistance 
it  would  give  in  preserving  a  consistency,  conciseness,  perspicu- 
ity and  technical  propriety  in  the  laws.  ...  It  would  .  .  . 
be  useful  to  the  community  at  large  as  an  additional  check  on 
those  unwise  and  unjust  measures  which  constituted  so  great 
a  portion  of  our  calamities."^  It  would  hinder  the  passage 
of  pernicious  laws  and  discourage  demagogues  from  attempting 
to  get  them  passed;  if  the  judges  were  compelled  to  wait  till 
the  laws  came  before  them  in  judicial  proceedings,  they  could 
only  negative  laws  which  were  unconstitutional;  in  a  revisory 
council  they  could  negative  any  unjust  or  harmful  law.^^'*  The 
chief  arguments  in  opposition  were  two.  First,  it  was  pointed 
out  that  this  council  would  violate  the  principle  of  the  separa- 
tion of  powers.^  This  evoked  the  reply  that  the  separation 
of  powers  argument  really  had  no  weight  in  this  case,  or  if  it 
did  it  applied  as  well  to  executive  revision  and  veto  as  to  judi- 
cial; and  Gouverneur  Morris  added  that  the  device  would  really 
make  more  certain  the  separation  of  powers,  for  the  legislature 
was  so  strong  that  the  other  departments  would  have  to  be 
combined  to  resist  encroachments  on  their  field.^^^  Then  it 
was  claimed  that  the  judges  ought  not  to  be  biassed  in  their 
exposition  of  the  laws  by  having  participated  in  the  making 
of  them.^^^  But  Madison  objected  that  "3,  small  proportion 
of  the  laws  coming  in  question  before  a  Judge  would  be  such 
wherein   he   had   been  consulted."^^    Although  this  revisory 

222  Ellsworth,  ibid.,  p.  399. 

223  Madison,  ibid.,  p.  401. 

224  Mason,  ibid.,  p.  403. 
^Ibid.,  pp.  122  and  401. 
226 /&«;.,  p.  404. 

^''Ibid.,  p.  122;  and  see  Gerry,  ibid.,  p.  401. 
^'^Ibid.,  p.  122. 


HISTORY  OF  THE  ADVISORY  OPINION  57 

council  was  urged  on  five  diJ0Ferent  occasions,^*  the  convention 
would  not  give  its  approval.  Charles  Pinckney  then  proposed'®® 
a  clause  which  (mutatis  mutandis)  was  identical  with  that  al- 
ready existing  in  Massachusetts,  except  that  opinions  were 
to  be  required  from  the  court  instead  of  the  justices.^^  This 
was  referred  without  debate  to  the  Committee  of  Detail,  and 
saw  the  Ught  of  day  no  more. 

It  has  been  intimated  by  Professor  Beard^^  that  the  failure 
of  the  revisory  council  was  due  to  a  feeUng  in  the  convention 
that  the  supreme  court  would  sufficiently  control  legislation 
through  judicial  revision;  but  there  is  very  little  evidence  of 
the  sentiment  of  the  convention  on  the  relations  between 
executive  and  judiciary.  In  general,  they  were  to  be  indepen- 
dent, that  is  clear;  but  how  much  cooperation  did  this  principle 
permit?  President  Washington,  who  had  presided  at  the 
convention,  evidently  thought  it  should  be  Uberal  in  extent. 
In  1790  he  wrote  to  the  justices,  expressing  his  persuasion  that 
the  judiciary  should  be  independent  in  its  operations,  but 
intimating  his  wiUingness  to  receive  suggestions  from  them  on 
the  organization  of  the  judicial  system.^  In  1793,  the  difficult 
questions  involved  in  our  relations  with  France  prompted  him 
to  go  much  farther.  Probably  it  was  in  a  cabinet  meeting  of 
July  12th  that  "it  was  determined  to  request  the  answers  of 
the  judges  of  the  supreme  court  of  the  United  States  to  a  series 
of  questions  comprehending  all  the  subjects  of  difference  which 
existed  between  the  executive  and  the  minister  of  France 
relative  to  the  exposition  of  the  treaties  between  the  two  coun- 

229  May  29,  Madison's  Journal,  I,  p.  62;  June  4,  ibid.,  I,  pp.  101  and  107; 
June  6,  ibid.,  I,  pp.  121-124;  July  21,  ibid.,  II,  pp.  398-405;  and  August 
15,   ibid.,   II,   p.   533. 

230  Mad.  Jour.  II,  p.  558;  5  Ell.  Deb.  p.  445. 
22^  Cf .  the  form  of  the  clause  in  Colorado. 

2*^  The  Supreme  Court  and  the  Constitution,  p.  63. 
2^  Spark's  Washington,  X,  p.  86. 


58        DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

tries.  "2^  In  a  letter  from  Jefferson,  Secretary  of  State,  to 
the  justices,  dated  July  ISth,  the  latter  are  informed  that  the 
war  has  been  responsible  for  many  difficult  questions  of  a  legal 
nature  which  were  causing  the  executive  department  much 
difficulty,  but  were  usually  presented  in  such  a  way  that  they 
could  not  be  brought  before  the  courts  in  judicial  proceedings. 
"The  President  would,  therefore,  be  much  reheved,  if  he  found 
himself  free  to  refer  questions  of  this  description  to  the  opinions 
of  the  judges  of  the  Supreme  Court  of  the  United  States,  whose 
knowledge  of  the  subject  would  secure  us  against  errors  dan- 
gerous to  the  peace  of  the  United  States,  and  their  authority 
insure  the  respect  of  all  parties.  He  has  therefore  asked  the 
attendance  of  such  judges  as  could  be  collected  in  time  for  the 
occasion,  to  know,  in  the  first  place,  their  opinion,  whether  the 
pubUc  may  with  propriety  be  availed  of  their  advice  on  these 
questions?  And  if  they  may,  to  present,  for  their  advice,  the 
abstract  questions  which  have  already  occurred,  or  may  soon 
occur,  from  which  they  will  themselves  strike  out  such  as  any 
circumstances  might,  in  their  opinion,  forbid  them  to  pronounce 
Qj^  "235  Probably  a  day  or  two  later  twenty-nine  questions 
were  submitted  to  the  justices,  dealing  almost  entirely  with 
our  rights  and  obHgations  as  a  neutral  state.^^^  The  judges 
evidently  hesitated  to  reply,  for  in  a  letter  of  July  23rd^^  the 
president  assents  to  a  delay  until  the  opinions  of  absent  justices 
can  be  ascertained.  Marshall  says^^  it  was  about  July  25th 
that  the  judges  communicated^^  to  the  president  their  un- 
willingness to  state  their  opinions  on  the  question  ssubmitted. 
"  Considering  themselves  merley  as  constituting  a  legal  tribunal 

234  Marshall's  Life  of  Washington,  V,  p.  433. 

235  Jefiferson's   Works,   IV,   p.    22. 

23«For  the  text  of  these  questions  see  Spark's  Washington,  X,  App. 
xvm. 

23'  Spark's  Washington,  X,  p.  359. 
238  Life  of  Washington,  V,  p.  44L 
2"  Unfortunately  the  exact  text  of  this  communication  is  not  available. 


HISTORY  OF  THE  ADVISORY  OPINION  59 

for  the  decision  of  controversies  brought  before  them  in  legal 
form,  those  gentlemen  deemed  it  improper  to  enter  the  field 
of  poUtics,  by  declaring  their  opinions  on  questions  not  growing 
out  of  the  case  before  them.  "^40  Early  m  August  the  president 
and  cabinet  acted  independently  of  the  judiciary,  and,  using 
their  own  judgment^  as  to  the  points  of  law  involved,  pro- 
claimed the  eight  rules  so  well  known  in  the  early  history  of 
international  law  in  the  United  States.^  There  appears  to 
be  no  other  instance  in  our  history  where  the  executive  has 
sought  the  extra-judicial  advice  of  the  supreme  court  justices, 
and  the  rule  of  this  case  has  been  accepted  as  a  principle  of  our 
constitutional  law.  "The  judicial  department  .  .  .  can  be 
called  upon  only  to  decide  controversies  brought  before  them 
in  a  legal  form;  and  therefore  are  bound  to  abstain  from  any 
extra-judicial  opinions  upon  points  of  law,  even  though  solemnly 
requested  by  the  executive.  "^^^ 

It  remains  to  consider  the  relations  of  the  legislative  depart- 
ment and  the  judiciary.  Several  times  the  former  has  endeav- 
ored to  impose  duties  on  the  courts  which  were  not  judicial 
in  character.  On  March  23,  1702,  Congress  passed  an  act 
dealing  with  widows'  and  orphans'  claims  and  invaUd  pensions.^ 
United  States  circuit  courts  were  required  to  receive  appHcations 
for  reHef  under  the  act  and  decide  the  merits  thereof,  but  such 
decisions  might  be  reconsidered  or  suspended  by  the  secretary 
of  war,  or  revised  by  Congress.     The  different  circuit  courts 

"°  Marshall's  Life  of  Washington,  V,  p.  441.  In  connection  with  this 
1793  case,  the  comment  of  Thayer  (Legal  Essays,  pp.  42-60)  is  worth  quot- 
ing: "It  was,  perhaps,  fortunate  for  the  judges  and  their  successors  that 
the  questions  then  proposed  came  in  so  formidable  a  shape  as  they  did. 
.  .  .  Had  they  been  brief  and  easily  answered  the  Court  might,  not 
improbably,  have  slipped  into  the  adoption  of  a  precedent  that  would  have 
engrafted  the  English  usage  upon  our  national  system." 

^1  See  letter  of  August  4th  in  Spark's  Washington,  X,  App.  xvm. 

'**  For  text  see  Spark's  Washington,  X,  App.  xix. 

^  Story  on  the  Constitution,  II,  s.  1571. 

^  1  U.  S.  Stat,  at  L.,  243. 


60   DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

promptly  sent  letters  to  the  president  (on  April  5th,  April  18th 
and  June  8th)  stating  that  they  would  not  act  in  such  cases 
and  setting  forth  their  reasons  for  refusing.^^^  All  of  them 
referred  to  the  separation  of  powers  as  a  fundamental  principle 
of  our  constitution,  and  denied  the  right  of  either  executive 
or  legislature  to  impose  any  but  judicial  duties  upon  the  courts, 
to  be  exercised  as  prescribed  in  the  constitution,  the  provisions 
of  which  did  not  empower  Congress  or  any  executive  officer 
*'to  sit  as  a  court  of  errors  on  the  judicial  acts  or  opinion?  of 
this  court. "  Some  of  them  doubtfully  indicated  that  they  might 
act  as  individual  commissioners  appointed  by  official  titles, 
to  avoid  giving  distress  to  many  meritorious  individuals  by  a 
delay.^  The  matter  was  brought  before  the  supreme  court 
by  an  application  of  the  attorney-general  for  a  writ  of  mandamus 
to  a  circuit  court  in  a  particular  case.^^  Meanwhile  the  presi- 
dent had  communicated  the  remonstrances  from  the  various 
courts  to  Congress,^^  and  while  Hayburn's  Case  was  still  under 
advisement.  Congress  provided  another  way  for  the  relief  of 
pensioners  ;^^  so  the  opinion  of  the  supreme  court  remains 
undisclosed,  but  Taney,  C.  J.,  said,  many  years  later,  that 
"the  repeal  of  the  Act  clearly  shows  that  the  President  and 
Congress  acquiesced  in  the  correctness  of  the  decision  (sc, 
the  opinions  of  the  circuit  courts)  that  it  was  not  a  judicial 
power.  "^°  An  unreported  case  came  to  light  at  the  same  time 
(1851),  in  which  the  supreme  court  permitted  the  United 
States  to  recover  money  paid  as  a  pension  under  an  award  of 
Jay,  C.  J.,  and  Cushing,  J.,  sitting  as  commissioners  under  the 
Act  of  1792.251    Taney,  C.  J.,  said  this  meant  that  the  supreme 

"8  See  text  in  Hayburn's  Case,  2  Dall.  409. 

^  See  especially  the  opinion  of  the  court  for  the  N.  C.  district — I.e. 
2*7  Hayburn's  Case,  2  Dall.  409. 

2"  On  April  16th,  April  21st  and  November  7th;  see  Annals  of  Cong. 
Ill,  557,  572  and  671. 

"» 1  U.  S.  Stat,  at  L.,  324. 

250  In  U.  S.  V.  Ferreira,  13  How.  40,  at  p.  50. 

^^  U.  S.  V.  Yale  Todd,  reported  in  note  to  U.  S.  v.  Ferreira,  ubi  supra. 


HISTORY  or  THE  ADVISORY  OPINION  61 

court  as  a  whole,  after  argument,  was  convinced  that  when 
an  Act  intended  to  confer  power  on  courts  as  a  judicial  power, 
it  would  not  be  construed  as  the  nomination  of  the  judges  of 
those  courts  to  act  as  commissioners  in  the  exercise  of  that 
power.  In  U.  S.  v.  Ferreira,'^^  Congress  had  passed  an  act^ 
directing  the  district  judge  for  the  Northern  District  of  Florida 
to  receive  and  adjudicate  certain  claims  of  Spanish  inhabitants 
for  losses  suffered  during  the  operations  of  the  American  army 
in  Florida,  and  to  report  the  decisions  and  evidence  to  the 
secretary  of  the  treasury,  who  should  pay  the  same,  if  he  were 
satisfied  that  they  were  just  and  equitable.  The  district  judge 
had  decided  a  claim  in  favor  of  Ferreira,  and  the  district  at- 
torney appealed  to  the  supreme  court.  Here  the  case  was 
dismissed  for  want  of  jurisdiction,  Taney,  C.  J.,  saying  it  was 
clear  that  the  judge  acted  as  a  specially  constituted  commis- 
sioner whose  award  was  subject  only  to  the  approval  of  the 
secretary  of  the  treasury;  this  was  not  a  judicial  proceeding, 
and  no  appeal  would  he  to  the  supreme  court.  He  cited  Hay- 
burn's  Case  as  an  authority,  but  U.  S.  v.  Yale  Todd  was  not 
called  to  his  attention  till  afterwards. 

Since  the  days  of  Washington,  then,  it  has  been  a  settled 
rule  that  the  supreme  court  of  the  United  States  w411  not  exer- 
cise extra-judicial  functions,  at  the  behest  either  of  the  executive 
or  of  Congress,  and  cannot  be  compelled  to  do  so  by  any  means 
short  of  a  constitutional  amendment.^  The  judicial  power  ex- 
tends only  to  cases  arising  under  the  constitution,  laws  and  treaties 
of  the  United  States,^  and  a  case  arises  only  when  a  matter  is 
submitted  to  the  court  "by  a  party  who  asserts  his  rights  in  the 

»M3  How.  40. 

=*'  9  U.  S.  Stat,  at  L.,  788. 

2"  Cf.  the  words  of  Taney,  C.  J.,  in  Gordon  v.  U.  S.,  117  U.  S.  697,  at 
p.  700:  "Its  jurisdiction  and  powers  and  duties  being  defined  in  the  organic 
law  of  the  government,  and  being  all  strictly  judicial,  Congress  cannot  re- 
quire or  authorize  the  court  to  exercise  any  other  jurisdiction  or  power,  or 
perform  any  other  duty." 

» Const.  Art.  Ill,  s.  2. 


62    DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

form  prescribed  by  law."^^  Also  the  jurisdiction  extends  only 
to  cases  where  the  court  can  render  judgment  in  the  legal  sense 
of  the  term.^^  This  means  that  the  judgment  must  be  ''  conclu- 
sive upon  the  rights  of  the  parties,  and  process  of  execution 
awarded  to  carry  it  into  effect.  The  award  of  execution  is  a  part, 
and  an  essential  part,  of  every  judgment  passed  by  a  court  exer- 
cising judicial  power.  It  is  no  judgment,  in  the  legal  sense 
of  the  term,  without  it.  .  .  .  It  would  be  merely  an  opinion, 
which  would  remain  a  dead  letter  and  without  any  operation 
upon  the  rights  of  the  parties,  unless  Congress  should  at  some 
future  time  sanction  it."^^^  More  recently  (in  1891)  the 
supreme  court  has  even  frowned  upon  a  "friendly  suit"  brought 
to  test  the  constitutionality  of  a  law  unsuccessfully  opposed 
in  the  legislature.^^ 

The  court  of  claims  is  a  curious  anomaly.  Created  in  1855 
with  jurisdiction  of  all  claims  (with  two  exceptions)  in  respect 
of  which  "the  party  would  be  entitled  to  redress  against  the 
United  States,  either  in  a  court  of  law,  equity,  or  admiralty, 

25«  Marshall,  C.  J.,  in  Osbom  v.  Bank  of  U.  S.,  9  Wheat.  319. 

2*7  Taney,  C.  J.,  in  Gordon  v.  U.  S.,  ubi  supra.,  at  p.  704. 

^^Ibid.,   at  p.   702. 

269  Chicago,  etc.  R.  R.  Co.  v.  Wellman,  143  U.  S.  339.  See  especially 
Brewer,  J.,'s  words  at  p.  344:  "The  theory  upon  which,  apparently,  this 
suit  was  brought  is  that  parties  have  an  appeal  from  the  legislature  to  the 
courts;  and  that  the  latter  are  given  an  immediate  and  general  supervision 
of  the  constitutionality  of  the  acts  of  the  former.  Such  is  not  true.  When- 
ever, in  pursuance  of  an  honest  and  actual  antagonistic  assertion  of  rights 
by  one  individual  against  another,  there  is  presented  a  question  involving 
the  validity  of  any  act  o^any  legislature,  State  or  Federal,  and  the  decision 
necessarily  rests  on  the  competency  of  the  legislature  to  so  enact,  the  court 
must,  in  the  exercise  of  its  solenrn  duties,  determine  whether  the  act  be  con- 
stitutional or  not;  but  such  an  exercise  of  power  is  the  ultimate  and  supreme 
fimction  of  courts.  It  is  legitimate  only  in  the  last  resort,  and  as  a  necessity 
in  the  determination  of  real,  earnest  and  vital  controversies  between  in- 
dividuals. It  never  was  the  thought  that,  by  means  of  a  friendly  suit,  a 
party  beaten  in  the  legislature  could  transfer  to  the  courts  an  inquiry  as 
to  the  constitutionality  of  the  legislative  act." 


HISTORY  OF  THE  ADVISORY  OPINION  63 

if  the  United  States  were  suable, "  it  does  not  seem  to  have  been 
a  fuU-fledged  court  exercising  judicial  powers  until  1866.  "  Origi- 
nally it  was  a  court  merely  in  name,  for  its  power  extended 
only  to  the  preparation  of  bills  to  be  submitted  to  Congress.  "^^ 
An  amending  act  of  1863^"  purported  to  authorize  the  rendering 
of  final  judgments,  but  section  fourteen  provided  ''that  no 
money  shall  be  paid  out  of  the  treasury  for  any  claim  passed 
upon  by  the  court  of  claims  till  after  an  appropriation  therefore 
shall  have  been  estimated  for  by  the  Secretary  of  the  Treasury.  '* 
Because  this  necessarily  impUed  revision  of  the  decisions  by 
the  head  of  an  executive  department,  the  supreme  court  held 
that  judicial  power  was  denied  the  court  of  claims,  and  refused 
to  entertain  an  appeal  from  its  decisions.^^^  j^  the  opinion 
of  Taney,  C.  J.,  the  action  of  the  court  of  claims  was  like  that 
of  an  auditor  or  comptroller.  "In  principle,  there  is  no  differ- 
ence between  these  two  special  jurisdictions  .  .  .  and  neither 
of  them  possesses  judicial  power  in  the  sense  in  which  those 
words  are  used  in  the  Constitution.  The  circumstance  that 
one  is  called  a  court  and  its  decisions  called  judgments  cannot 
alter  its  character  or  enlarge  its  power.  "^  The  defect  was 
remedied  by  the  repeal  of  the  offending  section  in  1866,^^  and 
the  supreme  court  thenceforth  allowed  appeals  from  the  court 
of  claims  as  regulated  by  statute.^  Strictly  speaking,  there 
is  perhaps,  an  exception  here  to  Chief  Justice  Taney's  assertion 
that  process  of  execution  is  a  necessary  concomitant  of  judicial 
power;  but  practically  the  exception  is  only  apparent,  for  the 


»"  U.  S.  V.  Klein,  13  WaU.  144. 

»!  Chap.  92,  12  Stat.  L.  765. 

»2  Gordon  v.  U.  S.,  2  Wall  561.  See  statement  of  court  record  in  U.  S. 
V.  Jones,  119  U.  S.  477. 

^  From  an  opinion  written  for  Gordon  v.  U.  S.  and  printed  as  an  ap- 
pendix in  117  U.  S.  697. 

»*Chap.  19,  14  Stat.  L.  9. 

^  U.  S.  V.  Jones,  119  U.  S.  477,  and  cases  cited  therein. 


64   DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

Statute  really  attaches  an  automatic  execution  to  every  final 
judgment   of   the   court   of   claims.^^ 

However,  the  court  of  claims  still  exercises  extra-judicial 
functions.  Under  the  Bowman  Act  of  1883,  the  senate  or 
house  of  representatives  or  any  of  their  committees  may  refer 
pending  claims  or  matters  to  the  court  of  claims  for  the  deter- 
mination of  facts,  and  any  executive  department  may  refer 
pending  claims  or  matters  involving  questions  of  law  or  fact; 
in  either  case,  the  court  is  not  to  enter  judgment,  but  must 
report  its  findings  of  fact  or  opinions  of  law  to  the  referring 
body  or  individual.  "The  function  of  the  Court  of  Claims, 
in  such  a  case,  (is)  ancillary  and  advisory  only,"  and  no  appeal 
therefrom  will  be  entertained  by  the  supreme  court.^^^ 

b.  Pennsylvania.  According  to  Thayer^^  opinions  were 
given  by  the  Pennsylvania  judges  to  the  executive  department 
on  several  occasions  between  1780  and  1790.  RespubUca  v. 
De  Longchamps^®^  is  an  instance  of  such  an  opinion.  The 
defendant  had  been  found  guilty  of  violence  done  to  the  consul- 
general  of  France  but  "sentence  of  the  court  was  suspended, 
in  consequence  of  a  case  stated  by  his  Excellency  the  President, 
and  the  Honorable  Supreme  Executive  Council,  for  the  opinion 
of  the  Judges.  It  was  argued  in  open  court,  on  the  10th  and 
12th  of  July,  by  five  Counsel,  two  for  the  aflarmative  and  three 
for  the  negative."  The  president  and  council  had  asked 
whether  the  defendant  could  be  legally  dehvered  up  to  be 
tried  in  France,  as  demanded  by  the  French  minister,  and  if 

^  "In  all  cases  of  final  judgments  by  said  court,  or,  on  appeal,  by  the 
said  supreme  court,  where  the  same  shall  be  affirmed  in  favor  of  the  claimant, 
the  sum  due  thereby  shall  be  paid  out  of  any  general  appropriation  made  by 
law  for  the  payment  and  satisfaction  of  private  claims,  on  presentation  to 
the  Secretary  of  the  Treasury  of  a  copy  of  said  judgment,  certified  by  the 
clerk  of  said  court  of  claims,  and  signed  by  the  chief  justice,  or,  in  his  ab- 
sence, by  the  presiding  judge  of  said  court. "  Section  7  of  Chap.  92,  12 
Stat.  L.  765. 

2«7  In  re  Sanborn,  148  U.  S.  222. 

*"  Cases  on  Constitutional  Law,  I,  p.  183  n. 

«9 1  Dall.  Ill  (1784). 


HISTORY  OF  THE  ADVISORY  OPINION  65 

not,  whether  imprisonment  under  this  conviction  could  con- 
tinue till  the  king  of  France  was  satisfied.  The  judges  returned 
a  negative  answer  to  both  questions  and  then  pronounced 
sentence. 

The  legislative  department  also  sought  judicial  assistance 
in  1807,"°  enacting  "That  the  judges  of  the  Supreme  Court 
are  hereby  required  to  examine  and  report  to  the  next  legisla- 
ture, which  of  the  English  statutes  are  in  force  in  this  Conunon- 
wealth,  and  which  of  those  statutes  in  their  opinion  ought  to 
be  incorporated  into  the  statutory  laws  of  this  Commonwealth. " 
The  judges  responded  cordially,  indicating  that  they  were 
honored  by  the  request  and  more  than  willing  to  comply  with 
it.  After  making  a  careful  examination  of  the  EngUsh  statute 
law  as  well  as  the  constitutional  and  statute  law  in  Pennsylvania, 
they  submitted  a  schedule  of  EngUsh  statutes  then  in  force 
in  Pennsylvania,  with  recommendations  as  to  their  inclusion 
in  or  omission  from  a  codification. 

c.  New  York.  There  is  clear  evidence  that  in  New  York 
too,  the  judges  gave  extra-judicial  assistance  to  the  other  two 
departments  of  government  though  not  required  to  do|so  by 
the  constitution.  However,  they  seem  to  have  considered 
legislative  authorization  a  prerequisite.  In  March,  1801, 
Governor  Jay  asked  the  judges  of  the  supreme  court  and  the 
chancellor  whether  members  of  the  council  of  appointment 
could  make  nominations,  or  could  only  confirm  or  reject  the 
governor's  nominations.  They  "refused  to  decide  the  question 
as  extra-judicial.""^  With  statutory  assistance,  the  executive 
has  fared  better  in  a  particular  class  of  cases.  A  law  of  1829^^ 
provided  that,  following  conviction  in  capital  cases,  the  pre- 
siding judge  should  communicate  to  the  governor  notice  of 
the  sentence  and  his  own  notes  of  the  testimony;  and  the  gov- 

"0  3  Binney,  595. 

"1  See  Pellew's  John  Jay,  p.  334;  alsoT^oberts'  New  York,  II,  p.  489. 

"'  2  Rev.  St.  658,  Pt.  IV,  tit.  1,  ss.  13.  14. 


66   DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

ernor  might  "require  the  opinion  of  the  Chancellor,  the  Jus- 
tices of  the  Supreme  Court,  and  of  the  Attorney-General,  or  of 
any  of  them,  upon  any  statement  so  furnished.  "^^^  i^  People 
V.  Green^^^  such  an  opinion  was  required  as  to  whether  certain 
evidence  had  been  properly  admitted.^^^  Counsel  appeared 
for  both  the  People  and  the  defendant.  The  Chancellor,  C.  J., 
and  Beardsley,  J.,  advised  the  governor  that  the  trial  court 
had  committed  no  error,  and  the  defendant  was  executed. 
At  least  one  of  these  judges^^^  joined  in  an  opinion  to  the 
legislature  the  following  year.^^'  In  the  absence  of  constitu- 
tional authority,  the  legislature  passed  an  act  (1845)  recom- 
mending a  constitutional  convention  and  referred  it  to  the  peo- 
ple. The  act  provided  that  the  delegates  to  the  convention 
should  be  the  same  in  number  as  the  members  of  the  Assembly. 
The  people  approved  it  in  1845.  The  apportionment  of  repre- 
sentatives had  been  fixed  by  the  constitution  till  January  1, 
1847,  but  in  1846  the  legislature  passed  a  new  apportionment 
act,  and  a  bill  was  introduced  to  base  the  number  of  convention 
delegates  on  the  new  apportionment.  This  bill  was  referred 
to  the  justices  by  the  house,  with  the  request  for  an  opinion 
as  to  whether  the  legislature  had  power  to  change  the  act  of 
1845.  The  judges  expressed  their  regret  that  "questions  of 
so  much  delicacy  and  importance  should  be  presented  under 
circumstances  which  have  given  us  but  a  few  hours  for  confer- 

2"  Thayer,  Cases  on  Constitutional  Law,  I,  p.  183  n.,  says  that  by  a 
statute  of  1847,  the  judges  of  the  court  of  appeals  were  substituted  for  the 
Chancellor,  and  that  the  law  still  exists  in  that  form.  N.  Y.  Code  Crim. 
Proc,  ss.  493,  494. 

27M   Denio  614. 

27' The  report  says  the  governor  "consulted  his  legal  advisers  in  such 


2'«  Beardsley,  J. 

277  See  Deb.  Mass.  Conv.  1853,  I,  pp.  138-40;  it  may  also  be  found  in 
Jameson  (Constitutional  Conventions,  pp.  386-414  and  663),  who  says  it 
was  probably  omitted  from  the  regular  reports  because  authorized  by  no 
constitutional  provision. 


HISTORY  OF  THE  ADVISORY  OPINION  67 

ring  together  and  reducing  our  opinion  to  writing; "  but  answered 
that  the  act  of  1845  must  stand  as  approved  by  the  people  and 
that  the  apportionment  referred  to  therein  is  the  old  appor- 
tionment.278  Notwithstanding,  the  legislature  passed  the  bill 
and  the  people  accepted  it  and  elected  delegates  on  the  basis 
of  the  new  apportionment. 

It  seems  doubtful  that  this  precedent  would  be  followed 
now.  In  a  submitted  controversy  on  an  agreed  case,^^^  the 
fifth  prayer  involved  the  question  whether  a  city  could  do  cer- 
tain things  not  then  permitted  in  its  charter,  if  the  legislature 
amended  the  charter.  WiUiams,  J.,  (with  the  concurrence 
of  the  other  justices)  repHed:  "We  are  by  this  submission 
gravely  asked  to  say  whether  such  an  amendment,  if  made 
by  the  Legislature,  would  be  constitutional.  ...  It  is  time 
enough  to  pass  upon  the  constitutionaHty  of  an  act  of  the 
Legislature  after  it  has  become  a  law.  Courts  do  not  instruct 
the  Legislature  in  advance  as  to  what  powers  they  have  under 
the  Constitution  to  pass  laws."  But  of  late  years  several 
attempts  have  been  made  to  estabUsh  the  advisory  opinion 
in  the  constitutional  system  of  New  York.  In  1907  and 
1908,  an  amendment  was  proposed  in  the  Assembly  per- 
mitting either  house  or  the  governor  to  require  the  opinion 
of  the  court  of  appeals  on  important  questions  of  law.^^*^  In 
1912  and  1913  the  same  amendment  with  the  addition  of  the 
phrase  "and  upon  solemn  occasions,"  was  proposed .^^^  Also 
in  1913,  an  amendment  was  proposed^^  giving  each  house 
authority  to  require  opinions  upon  "important  bills  pending  in 

"*  Jameson  (I.e.)  says  this  opinion  is  wrong. 

2"  Cataract  Power  Co.  v.  Buffalo  (1909)  115  N.  Y.  Supp.  1045. 

280 1907  Assem.  No.  2239  (Int.  1648),  Assam.  J.  1896,  and  1908  Assem. 
No.  773  (Int.  675),  Assem.  J.  293. 

=«  1912  Assem.  No.  1051  (Int.  956),  Assem.  J.  459,  940,  1045,  1148; 
and  1913  Assem.  No.  682  (Int.  656),  Assem.  J.  224,  1055,  1119,  1158,  1271, 
1663. 

2«2 1913  Assem.  No.  180  (Int.  177),  Assem.  J.  64,  1054,  1116,  1158, 1270, 
1564,  1947,  2010. 


68   DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

the  legislature,  before  their  third  reading,  as  to  their  constitu- 
tionality, excepting,  however,  private  or  local  bills."  In 
none  of  these  cases  did  the  bill  reach  the  stage  of  presentment 
to  the  people.2^  Finally,  in  1915,  both  of  the  above  proposi- 
tions were  introduced  in  the  constitutional  convention  of  that 
year,^^  but  neither  was  reported  out  by  the  judiciary  committee, 
d.  North  Carolina.  In  North  Carolina,  too,  opinions  have 
been  given  to  both  departments,  though  with  express  reserva- 
tions as  to  cases  wherein  private  property  rights  were  involved. 
The  senate,  in  1849 ,2^  asked  the  opinion  of  the  court  on  certain 
constitutional  questions  which  arose  in  a  contested  election. 
As  the  questions  were  of  a  judicial  character  and  since  there 
was  no  doubt  in  their  minds  as  to  the  rules  of  law  requested, 
the  justices  "deemed  it  a  duty  of  courtesy  and  respect  to  the 
Senate,  to  consider  the  points  submitted  to  them  and  to  give 
their  opinions  thereon."  But  they  stated  clearly  that  the 
reply  was  "not  strictly  an  act  of  official  obUgation,"  and  that 
if  they  had  been  in  doubt  as  to  the  law,  "they  would  have 
been  obHged  to  defer  their  answer  until  the  parties  or  their 
counsel  could  submit  their  views."  Again,  in  1869,^^  an 
opinion  was  requested  by  the  General  Assembly,  dealing  with 
the  term  of  office  of  its  members.  Pearson,  C.  J.,  and  Dick, 
J.,  were  sure  the  judges  were  not  forbidden  by  the  constitution 
to  answer  in  such  cases  and  "the  question  is  more  easy  of 
solution  now,  when  it  can  be  treated  as  a  dry  matter  of  con- 
stitutional law,  than  it  might  be  hereafter,  when  compHcated 
with  collateral  considerations."  They  distinguished  the  re- 
fusal to  reply  in  the  Homestead  Act  case,^^^  as  that  involved 
property  rights  that  might  come  before  the  court.    But  Reade, 

283  N.  Y.  State  Constitution  Annotated,  Pt.  II,  pp.  69,  137,  138. 
2M  The  first  by  Mr.  Donnelly  on  April  27th,  the  second  by  Mr.  Parsons 
on  June  10th.     See  Proposed  Amendments,  etc.  No.  9  and  No.  559. 
2»31N  C.  (9Ire.)  App. 

288  Opin.s  of  the  Justices  of  the  Supreme  Court,  64  N.  C  785. 
2"  This  must  have  been  c.  1868-9;  I  have  not  been  able  to  find  it. 


HISTORY  OF  THE  ADVISORY  OPINION  69 

Rodman  and  Settle,  JJ.,  refused  to  give  any  opinion  on  the 
question  stated,  relying  on  the  separation  of  powers  principle 
as  impliedly  forbidding  such  extra-judicial  advice — Rodman, 
J.,  adds  "except  on  occasions  of  the  most  manifest  necessity." 
This  rebuff  apparently  discouraged  the  legislature  from  fur- 
ther interrogations — and  the  governor  as  well,  though  he  had 
ceceived  advice,  given  without  question,  in  an  extradition 
case  of  1866.288 

e,  Delaware.  The  legislature  of  Delaware,  in  1852,  gave 
the  governor  a  statutory  power  to  request  opinions  from  the 
chancellor  and  judges  on  questions  of  constitutional  or  statu- 
tory law,  necessarily  involved  in  the  proper  discharge  of  his 
duty.289  This  provision  was  still  law  in  1915,^^°  but  the  gover- 
nor does  not  seem  to  have  made  any  attempt  to  avail  himself 
of  it.  Thayer^^^  mentions  a  request  from  the  legislature  to 
the  governor  (1895)  that  he  submit  to  the  judges  a  question 
relating  to  the  apportionment  of  delegates  to  a  constitutional 
convention,  but  he  found  no  record  of  executive  action. 

f.  Illinois.  No  advisory  opinion  is  recorded  in  the  Illinois 
reports,  to  the  knowledge  of  the  writer,  but  a  dictum  of  1857 
may  be  mentioned  in  passing.  The  relator  had  asked  for  a 
writ  of  mandamus  to  compel  the  governor  to  issue  certain 
bonds.  This  the  court  refused  to  grant,  disclaiming  any 
power  to  compel  the  other  departments  of  government  to  act; 
but  added  that  though  the  governor  was  independent  of  the 
court,  "should  he  consent  to  appear,  asking  our  opinion  on  a 

2"  In  the  matter  of  Hughes,  61  N.  C.  57. 

*""The  chancellor  and  judges,  whenever  the  Governor  shall  require 
it  for  public  information,  or  to  enable  him  to  discharge  the  duties  of  his 
office  with  fidehty,  shall  give  him  their  opinions  in  writing,  touching  the 
proper  construction  of  any  provision  in  the  constitution  of  this  State  or 
of  the  United  States,  or  the  constitutionality  of  any  law  enacted  by  the 
legislature  of  this  State. "  Ch.  27,  s.  4,  of  the  Rev.  Sts.  of  1852  as  Amended 
(1893),   p.    245. 

"°  Rev.  Code  1915,  c.  13,  s.  2.     Par.  402  on  p.  220. 

2"  Legal  Essays,  p.  55  n. 


70   DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

point  of  law,  it  would  be  readily  given.  "^^  It  is  quite  possible 
that  the  court  only  had  in  mind  such  cases  as  that  in  17  lUinois, 
167,  when  the  governor  appeared  voluntarily  on  an  agreed 
case  upon  an  application  for  a  mandamus  to  compel  him  to 
issue  certain  commissions,  and  would  have  refused  any  advice 
to  him  in  cases  not  regularly  brought  before  them. 

g.  Minnesota.  The  legislators  of  Minnesota  were  not  so 
altruistic  as  those  of  Delaware,  for  when  they  attempted  to 
impose  upon  the  supreme  court  the  statutory  duty  of  acting 
as  a  source  of  general  information,  they  bestowed  the  right 
of  interrogation,  not  upon  the  governor  but  upon  either  house 
of  the  legislature.^^^  Twice  the  judges  refused  (without  ex- 
planation) to  recognize  any  obligation  to  reply  to  questions 
put  under  the  statu te.^^^  But  the  senate  at  least  chose  to  look 
upon  this  as  an  oversight,  and  in  1865  again  asked  their  opinions 
upon  certain  questions.  The  judges  now  came  out  with  a 
definite  statement  of  their  position  with  respect  to  the  statute, 
and  their  refusal  was  put  on  record  in  the  reports.^^^  McMil- 
lan, J.,  declares  that  the  statute  is  unconstitutional,  for  the 
fundamental  principle  of  the  separation  of  powers  "prohibits 
the  imposition  by  one  (department)  of  any  duty  upon  either 
of  the  others  not  within  the  scope  of  its  jurisdiction.  .  .  . 
The  duty  sought  to  be  imposed  by  the  section  of  the  act  referred 
to,  is,  clearly,  neither  a  judicial  act,  nor  is  it  to  be  performed 
in  a  judicial  manner.  It  constitutes  the  supreme  court  the 
advisers  of  the  legislature,  nothing  more."  Moreover  "we 
are  prevented  from  voluntarily  complying  with  the  request, 
by  the  views  we  entertain  of  our  judicial  duty  and  the  injurious 

"2  People  ex  rel.  v.  Bissell,  19  111.  229. 

"3  Comp.  Stat.  s.  15,  ch.  4,  provided  that  "either  house  may,  by  reso- 
lution, request  the  opinion  of  the  supreme  court,  or  any  one  or  more  of  the 
judges  thereof,  upon  a  given  subject,  and  it  shall  be  the  duty  of  such  court 
or  judges,  when  so  requested,  respectively,  to  give  such  opinion  in  writing." 

»MSJ.  1858,  718;  SJ.  1863,  54,  and  Laws  1863,  75. 

"*  In  the  matter  of  the  Application  of  the  Senate,  10  Minn.  78. 


HISTORY  OF  THE  ADVISORY  OPINION  71 

tendency  of  such  precedent."  And  he  adds  that  "such  a  con- 
stitutional provision  does  not  address  itself  to  our  niinds  with 
any    favor." 

This  definite  opinion  sufficiently  suppressed  the  legislature, 
and  no  further  requests  appear.  But  the  executive  department 
evidently  did  not  grasp  that  the  reasons  given  appUed  to  it 
as  well.  In  Rice  v.  Austin,^^®  an  action  brought  against  the 
governor,  this  official,  through  the  attorney-general,  asked 
the  court  for  an  opinion  as  to  the  construction  of  Laws  1869 
c.  96.  The  court  declined  to  comply  with  this  request  for  the 
reasons  stated  in  10  Minnesota  78.  Again  in  State  v.  Dike,^^^  the 
secretary  of  state  made  a  similar  request,  with  the  same  result. 
Since  then  the  supreme  court  has  been  undisturbed  by  extra- 
judicial interrogation. 

h.  Connecticut.  The  judges  of  the  supreme  court  in  Connec- 
ticut (perhaps  because  of  New  England  influence)  were  at  first 
not  averse  to  expressing  extra-causal  opinions  upon  questions 
of  constitutional  law.  Acting  by  direction  of  the  general 
assembly,  the  governor,  in  1863,  requested  their  opinions  as 
to  the  constitutionality  of  the  Soldiers'  Voting  Act  of  December 
24,  1862.^^^  The  judges,  without  question,  examined  the 
statute  and  certified  to  the  governor  that  it  was  unconstitution- 
al. Later  ''in  accordance  with  the  settled  policy  of  the  state 
and  the  presumed  expectation  of  the  Assembly,"  they  furnished 
to  the  reporter  their  reasons  for  the  opinion.^^^  In  1865  an 
opinion  was  given,  in  response  to  a  direct  interrogation  from 
the  assembly,  as  to  whether  a  negro  was  a  "citizen  of  the  United 
States"  within  the  Constitutional  Amendment  of  October, 
1845.     Here  there  was  no  discussion  at  all.^^*^ 

29«19   Minn.    103. 
'"  20  Minn.  363. 

"^Questions  re  Soldiers'  Voting  Acts  are  the  subject  matter  of  an 
advisory  opinion  in  44  N.  H.  633   (1863). 

-"  Opin.  of  the  Judges  of  the  Supreme  Court,  30  Conn.  591. 
'°°  Opin.  of  the  Judges  of  the  Supreme  Court,  32  Conn.  565. 


72        DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

But  two  years  later  this  growing  practice  came  to  an  un- 
timely end.^^^  The  assembly  requested  an  opinion  as  to  cer- 
tain proposed  legislation  for  taxing  the  incomes  from  United 
States  bonds  held  by  inhabitants  of  Connecticut,  and  the 
judges  unanimously  decUned  to  answer.  They  limited  their 
refusal  to  questions  as  to  the  "validity  of  contemplated  legis- 
lation," but  the  objections  adduced  were  so  comprehensive 
as  to  discourage  any  questions  at  all.  Such  opinions  would 
be  extra-judicial,  they  said,  and  not  binding  on  anyone;  yet 
they  might  have  an  undesirable  influence  should  related  cases 
later  be  brought  before  a  court.  It  is  intimated  that  such 
judicial  action  is  probably  invalid,  "both  from  its  conflict 
with  our  judicial  duties  and  from  its  conflict  with  the  legislative 
duties  of  your  honorable  body."  Finally  they  distinguish 
the  two  precedents  already  mentioned  as  cases  of  great  impor- 
tance "where  an  immediate  opinion  was  needed,  and  where  the 
points  involved  could  not  well  be  reached  by  ordinary  Htigation. " 
But  the  last  statement  is  scarcely  true  of  the  Soldiers'  Voting 
Acts,  for  the  constitutionaHty  of  these  was  actually  tested  in 
regular  judicial  proceedings.^^^  The  truth  seems  to  be  the 
judges  wished  to  check  a  practice  to  them  undesirable,  before 
the   force   of   precedent   became   irresistible. 

i.  Vermont.  The  Soldiers'  Voting  Act  in  this  State^^^ 
provided  (s.  12)  that:  "This  act  shall  not  take  effect  until 
the  Governor  submits  the  same  to  the  Judges  of  the  Supreme 
Court,  with  the  inquiry  'Are  the  provisions  of  this  act  con- 
stitutional?' and  until  the  Governor  has  obtained  in  writing 
the  opinion  of  said  Judges  thereon;  and  if  the  said  Judges 
decide  that  the  provisions  of  the  act,  or  certain  parts  thereof, 
are  unconstitutional,  then  the  same,  or  such  parts  thereof  as 

3°i  Reply  of  the  Judges  of  the  Supreme  Court  to  the  General  Assembly, 
3Z  Conn.  586. 

^i"  Chase  v.  Miller  (Penn.)  Am.  L.  Reg.  2  (N.S.)  146;  Morrison  v. 
Springer,  15  la.  304;  State  ex  rel.  v.  Main  (Wis.),  see  15  la.  340. 

303  L.  1863,  No.  5. 


HISTORY  OF  THE  ADVISORY  OPINION  73 

said  Judges  shall  decide  are  unconstitutional,  shall  be  null  and 
void,  and  the  residue  thereof  shall  remain  in  full  force  and 
virtue."  The  governor  submitted  the  Act  to  the  judges  in 
January,  1864,  and  the  latter  gave  their  opinions  in  writing  on 
April  1st,  complaining  only  that  they  had  not  enjoyed  the 
advantages   of  argument  by  counsel.^^ 

The  success  of  this  interrogation  evidently  prompted  the 
legislators  to  perpetuate  the  practice,  for  in  L.  1864  No.  70, 
we  find  a  provision  that  the  judges  shall  reply  in  writing,  when 
the  governor  submits  questions  of  law  concerning  the  discharge 
of  his  duties.^°^  This  continued  in  force^*^  almost  to  the  date 
of  writing.  It  was  repealed  (by  a  bill  introduced  in  the  senate) 
on  March  30,  1915.^^^  However,  I  have  been  unable  to  dis- 
cover a  single  reference  made  by  the  governor  under  the  statute. 
It  might  be  argued  that  its  repeal  is  indicative  of  a  feeUng  in 
the  legislature  that  such  opinions  are  undesirable. 

j.  Kentucky.  A  single  advisory  opinion  was  given  by  the 
court  of  appeals  in  Kentucky  in  1881,  on  a  matter  directly 
concerning  the  court  itself .^°^  The  governor  referred  a  question 
as  to  his  constitutional  power  to  fill  by  appointment  a  vacancy 
in  the  court,  where  the  imexpired  term  was  greater  than  one 
year.  That  the  question  was  not  hypothetical  appears  from 
the  reply  which  contains  ofl&cial  notice  of  the  recent  death  of 
Cofer,  J.  However  in  1895,^°^  the  judges  indicated  an  im- 
willingness  to  give  ex  parte  opinions  in  cases  which  might  be 

^°*  Opin.  of  the  Judges  of  the  Supreme  Court,  etc.,  37  Vt.  665. 

'*"The  governor,  when  the  interests  of  the  State  demand  it,  may 
require  the  opinion  of  the  judges  of  the  Supreme  Court  or  a  majority  of 
them  upon  questions  of  law  connected  with  the  discharge  of  his  duties. 
And  the  judges  of  the  Supreme  Court,  or  any  of  them,  shall  give,  in  writing, 
their  opinion  upon  such  questions." 

»»Rev.  L.  1880,  s.  795;  Pub.  St.  1906,  s.  1341. 

»"L.  Vt.  1915,  No.  84. 

3°«  Opm.  of  the  Judges  of  the  Court  of  Appeals,  79  Ky.  621. 

'"  In  re  Board  of  Sinking  Fund  Commissioners,  32  S.  W.  414.  The 
opinion  is  marked:  "Not  to  be  officially  reported;"  and  is  not  included  in 
the  Ky.  reports. 


74        DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

brought  before  them  in  some  regular  judicial  proceeding, 
although  they  expressly  refrained  from  deciding  the  question 
of  jurisdiction,  and,  semble,  based  their  refusal  to  reply  to  the 
Board  of  Sinking  Fund  Commissioners  on  the  ground  that 
"the  court  would  be  as  much  embarrassed  in  determining  the 
questions  made  as  the  commissioners." 

k.  Ohio.  In  State  v.  Baughman  (1882),3i^  ^^e  justices 
of  the  Ohio  supreme  court  took  the  stand  that  advisory  opinions 
should  not  be  given  except  under  a  constitutional  clause  re- 
quiring them.  The  general  assembly  had  directed  the  attorney- 
general  to  institute  quo  warranto  proceedings  against  the  police 
commissioners  of  Xenia,  and  if  possible  to  procure  the  decision 
of  the  supreme  court  on  several  constitutional  questions  sug- 
gested. The  position  of  the  court  is  clearly  stated  by  Johnson, 
J.:  "It  is  only  so  far  as  these  several  questions  are  involved 
in  the  title  to  the  offices  in  question  that  this  court  is  author- 
ized to  answer  them.  ...  A  decision  on  any  of  the  questions 
suggested,  not  necessary  to  a  determination  of  the  right  of 
defendants  to  exercise  these  functions  would  not  be  a  judicial 
settlement  of  such  questions,  but  would  be  without  authority 
conferred  by  the  constitution  to  make  it.  .  .  .  If  the  judiciary 
were  to  assume  to  decide  hypothetical  questions  of  law  not 
involved  in  a  judicial  proceeding  in  a  cause  before  it,  even  though 
the  decision  'would  be  of  great  value  to  the  general  assembly' 
in  the  discharge  of  its  duties,  it  would,  nevertheless,  be  an  un- 
warranted interference  with  the  functions  of  the  legislative 
department  that  would  be  unauthorized,  and  dangerous  in 
its  tendency." 

1.  Nebraska.  The  advisory  opinion  has  flourished  extra- 
constitutionally  in  Nebraska  to  as  great  an  extent  as  it  did  in 
Missouri  and  almost  as  great  as  in  South  Dakota  under  a  con- 
stitution. Ten  opinions  were  given  in  a  period  of  ten  years, 
four  to  executive  organs,  six  to  one  or  both  houses  of  the  legis- 

3'0  38   Ohio   St.   455. 


HISTORY  OF  THE  ADVISORY  OPINION  75 

lature.  The  first  one  recorded  was  in  1883,^^^  where  the  house 
of  representatives  asked  the  supreme  court  judges  questions 
in  connection  with  contemplated  legislation  regulating  the 
management  of  railroads  in  Nebraska.  The  judges  complied 
cheerfully,  but  their  answers  were  given  with  diffidence  because 
of  the  lack  of  legal  assistance.  The  same  year,  questions  re- 
garding the  investment  of  school  funds  were  referred,  by  the 
Board  of  Educational  Lands  (which  included  the  governor), 
for  the  justices  to  answer  "if  not  inconsistent  with  their  duties. " 
They  promptly  replied  that  such  a  function  was  not  inconsistent 
with  their  duties  and  proceeded  to  give  the  opinions  requested.^^^ 
But  after  complying  with  two  more  requests  of  a  similar  nature 
— one  from  a  board  which  did  not  include  the  govern  or, ^^^ 
one  from  the  auditor  of  pubhc  accounts^^* — the  court  made  a 
rule,^^^  in  1887,  that  "no  questions  not  matters  of  actual  litiga- 
tion, except  when  presented  by  either  house  of  the  legislature 
or  a  committee  thereof,  shall  be  presented  to  the  court,  save 
in  the  method  prescribed  by  section  567  of  the  Code,  and  all 
such  questions  shall  be  filed  and  docketed  as  other  causes." 
The  legislature  readily  availed  itself  of  the  implied  permission 
herein  contained,  and  five  opinions  are  recorded  in  1889  and 
jg9j  316  j^ii  Qf  these,  except  the  first,  were  entered  on  the 
docket  under  Rule  23,  and  counsel  for  both  sides  (as  well  as 
an  amicus  curiae  in  one  case)  were  heard  by  the  court  before 
an  opinion  was  given.  This  obviated  the  objection  raised 
in  15  Nebraska,  679,  but  there  were  more  serious  breakers 
ahead. 

^"  In  re  Railroad  Commissioners,  15  Neb.  679. 

312  In  re  School  Fund,  15  Neb.  684. 

3"  In  re  Board  of  Public  Lands  and  Buildings,  18  Neb.  340. 

31"  In  re  Babcock,  21  Neb.  500. 

316  Rule  No.  23  of  July  Term,  1887,  in  22  Neb.  11. 

"9  In  re  State  Warrants,  25  Neb.  659;  In  re  Appropriations  for  Deputies, 
etc.,  25  Neb.  662;  In  re  Senate  File  31,  25  Neb.  864;  In  re  Quaere  of  the 
Procedure  of  the  Two  Houses,  etc.,  31  Neb.  262;  and  In  re  House  Roll 
284,  31  Neb.  505. 


76        DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

In  1893,  the  board  of  public  lands  and  buildings  submitted 
to  the  court  questions  as  to  their  statutory  duties.  Maxwell, 
C.  J.,  and  Post,  J.,  answered  without  comment,  but  Norval, 
J.,  forcibly  declined  to  give  any  opinion.^^'  As  the  reference 
was  not  within  Rule  23,  the  justices  had  not  had  the  benefit 
of  legal  assistance,  and  that  is  a  point  of  objection;  but  the 
dissenting  opinion  further  declares  that  it  is  the  duty  of  the 
court  to  pass  upon  the  constitutionality  of  statutes  only  in 
actual  litigations,  and  that  even  the  legislature  could  not 
increase  the  jurisdiction  of  the  court.^^^  The  justice  asserts 
that  he  had  given  his  opinion  reluctantly  in  the  two  preceding 
cases,  and  was  convinced  that,  overloaded  with  regular  business 
as  the  court  then  was,  in  justice  to  htigants,  they  should  "call 
a  halt. "  He  won  the  rest  of  the  court  over  to  his  way  of  think- 
ing, for  in  the  rules  of  January  4,  1894,^^^  we  find  (Rule  No.  23) 
that  "only  questions  involved  in  matters  of  actual  litigation 
before  the  court  will  be  entertained  or  judicially  determined, 
and  no  opinion  will  be  filed  in  answer  to  any  merely  hypotheti- 
cal question."  This  has  been  the  rule  to  the  present  time.^^*^ 
In  conformity  therewith,  the  judges  have  refused  to  give  any 
administrative  advice  whatever,  even  in  connection  with  a 
regular  action  before  the  court.^^^ 

m.  Oklahoma.  The  practice  introduced  in  New  York  in 
1829  of  gubernatorial  interrogation  of  the  judges  in  capital 

'"  In  re  Board  of  Purchase  and  Supplies  for  State  Institutions,  37  Neb, 
425. 

318  Cf.  Miller  v.  Wheeler,  33  Neb.  765. 
31*37  Neb.  xiii. 

320  See  Rule  No.  32  of  Feb.  17,  1898,  in  52  Neb.  xviii,  and  Rule  No.  17 
of  Feb.  1,  1914,  in  94  Neb.  xv. 

321  "The  questions  which  may  arise  under  this  .  .  .  revenue  act  .  .  . 
are  innumerable,  but  imtil  they  are  brought  here  in  a  proper  proceeding, 
and  we  have  had  the  benefit  of  argument  and  examination,  we  cannot  under- 
take a  duty  which  the  law  itself  imposes  upon  those  appointed  to  administer 
it,  or  lay  down  rules  in  advance  of  any  controversy."  Per  Sullivan,  C.  J., 
in  State  v.  Fleming,  (1903)  70  Neb.  523. 


HISTORY  OF  THE  ADVISORY  OPINION  77 

cases  where  the  defendant  has  been  convicted^  was  adopted 
in  Oklahoma  m  1903.^  The  supreme  court  gave  an  opinion 
in  such  a  case,  though  with  hesitation,  in  1908,^  but  the  fol- 
lowing year^^  they  unanimously  refused  further  compliance 
with  the  statute.  The  opinion  given  on  that  occasion  states 
that  there  is  grave  doubt  as  to  whether  the  Act  is  constitu- 
tional, since  it  "  purports  to  impose  on  this  court  a  duty  which, 
if  discharged,  would  amount  neither  to  a  judicial  act,  nor  one 
to  be  performed  in  a  judicial  manner,  but  one  which,  in  effect, 
would  make  the  judges  of  this  court,  or  some  one  of  them,  ad- 
visers of  the  Governor."  But  even  if  the  constitutionaHty 
be  waived,  they  claimed  all  criminal  jurisdiction  had  passed 
to  the  newly  created  Criminal  Court  of  Appeals,  and  "any 
authority  to  express  an  opinion  is  in  that  court." 

The  next  case  of  this  description  that  came  before  the 
governor  was  referred  by  him  to  the  Criminal  Court  of  Appeals.^ 
The  judges  thereof  readily  gave  their  advice,  saying  it  was  un- 
necessary to  consider  the  constitutionality  of  the  statute,  "as 
an  opinion  of  this  kind  has  not  the  force  of  an  adjudication, 
and  is  merely  persuasive  or,  at  most,  advisory. "  Subsequently 
two  opinions  were  given  without  comment.^'  But  in  1911,^^ 
the  judges  stated  that  the  intention  of  the  statute  was  to  re- 
quire an  opinion  only  "where  an  appeal  has  not  been  taken 

^  See  p.  65  supra. 

323  Wilson's  Rev.  and  Ann.  St.  of  1903,  ss.  5588-9:  "The  judge  of  a 
court  at  which  a  con\dction  requiring  a  judgment  of  death  is  had  must, 
immediately  after  the  conviction,  transmit  to  the  Governor,  by  mail  or 
otherwise,  a  statement  of  the  conviction  and  judgment,  and  of  the  testimony 
given  at  the  trial.  The  Governor  may  thereupon  require  the  opinion  of 
the  Judges  of  the  Supreme  Court  or  any  of  them  upon  the  statement  so 
furnished. "    This  is  in  Snyder's  St.  ss.  6927-8. 

^  State  V.  Johnson,  21  Okla.  40. 

325  In  re  Opin.  of  the  Judges,  25  Okla.  76. 

*»  Opin.  of  the  Judges,  3  Okla.  Cr.  315. 

327  In  re  Opin.  of  the  Judges,  4  Okla.  Cr.  594;  In  re  Opin.  of  the  Judges, 
6  Okla.  Cr.  18. 

328  In  re  Opin.  of  the  Judges,  6  Okla.  Cr.  210. 


78        DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

from  a  judgment  and  sentence  of  death;"  and  in  1912,^29  j^^ 
the  last  case  reported,  an  opinion  was  refused  on  this  very 
ground,  as  "it  would  be  improper  for  the  judges  to  express 
any  opinion  in  an  ex  parte  proceeding  as  to  the  rights  of  a  de- 
fendant which  may  afterwards  be  brought  before  them  by 
appeal,  where  all  parties  interested  would  be  represented.  To 
pass  upon  such  questions  in  advance  of  an  appeal  would  be 
to  deprive  a  defendant  of  his  constitutional  right  to  be  heard 
in  his  own  behalf." 

Summary.  A  review  of  the  practice  in  the  twelve  States 
considered  above  will  show  that  there  is  a  pronounced  tendency 
in  recent  years  for  the  courts  to  put  a  stop  to  the  giving  of 
extra-judicial  advice  where  it  is  not  required  by  the  constitution. 
Most  of  the  precedents  enumerated  above  are  of  remote  date, 
and  many  of  them  have  been  expressly  repudiated.  Of  those 
States  where  there  was  an  attempt  to  exact  some  form  of  ad- 
visory opinion  by  statute,  one  has  repealed  the  requirement, 
one  has  suffered  its  judicial  impugnment  to  go  unquestioned, 
and  two  still  treasure  it  in  the  dark  closets  of  supererogatory 
legislation,  "unwept,  unhonor'd  and  unsung."  Only  in  Okla- 
homa has  such  a  requirement  been  put  to  the  test  in  the  last 
twenty  years,  and  there  even  the  exiguous  consultation  per- 
mitted by  the  statute  has  been  reduced  to  the  vanishing  point 
by  judicial  construction.  It  may,  then,  be  stated  as  a  settled 
principle  of  our  constitutional  law  that  the  justices  of  the 
State  supreme  courts  are  under  no  obHgation  to  render  extra- 
judicial advice  or  assistance  to  the  executive  or  legislative  depart- 
ments, even  though  bidden  to  do  so  by  legislative  enactment. 
There  is  even  some  doubt  as  to  whether  they  may  constitu- 
tionally yield  to  importunities  for  such  advice.^*^ 

329  In  re  Opin.  of  the  Judges,  8  Okla.  Cr.  467. 

330  See  Reply  of  the  Judges,  etc.,  3d>  Conn.  586;  In  the  matter  of  the 
Application  of  the  Senate,  10  Minn.  78;  In  re  Board  of  Purchase  and  Sup- 
plies for  State  Institutions,  37  Neb.  425,  per  Norval,  J.;  Opin.s  of  the  Jus- 
tices, etc.,  64  N.  C.  785,  per  Reade,  Rodman  and  Settle,  JJ.;  and  State  v. 
Baughman,  38  Ohio  St.  455. 


HISTORY  OF  THE  ADVISORY  OPINION  79 


C.  In  Canada 

1.  The  Dominion. 

The  historical  development  of  the  advisory  opinion  in 
Canada  is  very  interesting  and  instructive  for  several  reasons. 
We  have  here  an  example  of  a  federal  supreme  court  bound 
to  advise  the  executive  department  in  a  great  V9,riety  of  cases. 
We  have  an  unquestioned  and  expUcit  enumeration  of  the  cases 
wherein  the  obhgation  exists.  We  have  an  authoritative  and 
controlling  statement  as  to  the  effect  of  such  opinions.  Fur- 
thermore, the  majority  of  the  constituent  member -states  have 
incorporated  the  same  practice  into  their  constitutional  systems. 
Of  course,  there  are  certain  very  important  differences  between 
the  situation  in  the  United  States  and  that  in  Canada.  The 
Canadian  supreme  court  is  the  creature  of  the  legislature, 
acting  within  section  101  of  the  British  North  America  Act 
of  1867.  Thus  the  legislature  was,  and  is,  in  a  position  to  define 
the  duties  and  jurisdiction  of  that  court,  as  long  as  it  avoids  con- 
flict with  the  other  sections  of  the  act.  The  provincial  legis- 
latures are  equally  supreme  by  virtue  of  section  92,  paragraph 
14,  of  the  same  act.  It  will  be  noted  later  that  this  practically 
eliminates  the  separation  of  powers  argument  from  considera- 
tion. The  judges  are  not  even  as  free  to  discriminate  as  were 
their  judicial  ancestors  in  the  mother  country,  at  least  since 
the  end  of  the  seventeenth  century. 

The  Dominion  legislature  first  created  a  supreme  court  for 
the  federation  in  1875,^^  and  provided  in  the  same  act  for  the 
giving  of  advisory  opinions  to  the  governor-general  in  coun- 
cil. The  clause  covered  any  matter  which  the  latter  thought 
"fit"  to  refer .^  There  is  evidence  of  judicial  disapproval  as 
early  as  1879.    In  Queen  v.   Robertson,^  Strong,  J.,  says: 


»»38  Vic.  c.  11. 

^  For  the  text  of  the  provision  see  Appendix  II. 

3«6Can.  S.  C.  R.  127. 


80   DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

"In  the  case  of  private  suitors,  if  a  special  case  appears  to  be 
framed  for  the  purpose  of  eUciting  an  opinion  upon  a  question, 
the  decision  of  which  is  not  essential  to  determine  the  rights 
of  the  parties,  the  court  will  refuse  to  entertain  it,  and  I  see 
no  reason  why  the  same  rule  should  not  be  applied  to  a  case 
in  which  the  Crown  is  a  party.  As  the  case  is  presented  to 
the  court  it  appears  that  the  officers  of  the  Crown  have  arranged 
to  pay  the  suppHant,  not  damages,  but  a  gratuity,  in  the  event 
of  the  court  being  of  the  opinion  that  the  Crown  had  no  author- 
ity to  grant  the  license  in  question.  This  is  to  invoke  an  ad- 
visory, not  a  contentious,  jurisdiction,  and  such  a  jurisdiction 
.  .  .  ought  not  to  be  exercised  unless  conferred  by  statute, 
which  has  not  been  done."  But  his  brethren  on  the  bench 
did  not  agree  with  him  and  he  went  on  to  express  his  opinion. 
Five  references  were  made  under  the  provision  prior  to 
1892,3^  but  the  possibilities  of  the  device  and  the  important 
results  of  its  frequent  use  were  evidently  overlooked.  In  fact 
in  1884  the  legislature  passed  an  act^^  which  specially  provided 
(s.  28)  that  the  supreme  court  should  determine,  on  reference 
from  the  governor-general,  as  to  the  competency  of  the  legis- 
lature to  pass  "The  Liquor  Licence  Act,  etc."  in  whole  or  in 
part.^®  And  in  his  recommendation  that  certain  questions  be 
referred.  Sir  John  Thomson,  minister  of  justice,  said  (in  1889) : 
"This  provision  which  confers  that  power  on  your  Excellency 
was  undoubtedly  intended   to   enable   the   Governor-General 

3'*  In  re  New  Brunswick  Penitentiary,  April,  1880;  In  re  Canada  Tem- 
perance Act  of  1878,  and  County  of  Perth,  Cass.  Dig.  105;  In  re  Canada 
Temperance  Act  of  1878,  and  County  of  Kent,  Cass.  Dig.  106;  The  Thrasher 
Case,  Cass.  Dig.  480;  The  Manitoba  Railway  Crossings  Case.  See  Cameron, 
p.  267. 

335  47  Vic.  c.  32. 

'Aldington,  J.,  argues  from  this  that  s.  37  of  the  original  Supreme 
Court  Act  did  not  authorize  questions  to  be  referred  re  the  competence  of 
the  legislature  to  pass  pending  or  possible  bills.  35  Can.  S.  C.  R.  581, 
at  596.  But  it  seems  more  probable  that  the  provision  was  either  a  super- 
fluity due  to  forgetfulness  or  an  example  of  over-abundant  caution. 


HISTORY  OF  THE  ADVISORY  OPINION  81 

to  obtain  an  opinion  from  the  Supreme  Court  of  Canada  in 
relation  to  some  order  which  his  Government  might  be  called 
upon  to  make,  or  in  relation  to  some  action  which  his  officers 
might  be  called  upon  to  adopt.  "^^ 

More  careful  definition  was  obviously  in  order  and  in  1891 
the  section  was  amended^^  to  cover  "important  questions  of 
law  or  fact  touching  provincial  legislation,  or  the  appellate 
jurisdiction  as  to  educational  matters  vested  in  the  (jovemor 
in  Council  by  the  'British  North  America  Act,  1867,'  or  by 
any  other  act  or  law,  or  touching  the  constitutionaUty  of  any 
legislation  of  the  ParUament  of  Canada,  or  touching  any  other 
matter  with  reference  to  which  he  sees  fit  to  exercise  this  power.  *' 
It  was  added  that  the  opinions  should  be  given  "in  like  manner 
as  in  the  case  of  a  judgment  upon  an  appeal  to  the  said  court. " 
Furthermore  the  statute  required  that  the  attorney-general 
of  a  province  interested  in  any  question  should  be  notified  of 
the  reference  and  heard  in  argument,  and  provided  that  the 
court  in  its  discretion  might  notify  any  persons  interested  in 
any  question  referred  of  the  hearing,  and  such  persons  should 
be  "entitled  to  be  heard  thereon;"  or  might  require  counsel 
to  argue  the  case  as  to  any  interest  which  was  unrepresented, 
at  the  government's  expense.  Finally  it  declared  that  opinions 
given,  "  although  advisory  only,  shall,  for  all  purposes  of  appeal 
to  Her  Majesty  in  Council,  be  treated  as  a  final  judgment  of 
the  said  court  between  parties.  "^^ 

The  first  reference  under  this  form  of  the  provision  seems 
to  have  been  In  re  County  Courts  of  British  Columbia  (1892).34o 
It  related  to  the  constitutionaUty  of  certain  legislation  enacted 
in  British  Columbia  and  of  a  statute  of  the  Dominion  legisla- 
ture. Counsel  appeared  for  the  province  and  the  Dominion. 
In  the  next  case  (1894),  the  justices  were  asked  to  construe 

«^  12  Legal  News,  286. 

^  By  54-55  Vic.  c.  25,  s.  4. 

^'  For  the  text  of  the  provision  see  Appendix  II. 

»*''21  Can.  S.  C.  R.  446. 


82   DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

the  British  North  America  Act,  as  well  as  certain  Manitoba 
statutes,  and  to  define  the  powers  of  the  governor-general  in 
a  particular  instance.  Taschereau,  J.,  participated  in  such  a 
case  for  the  first  time,  and  expressed  a  doubt  as  to  the  constitu- 
tionahty  of  54-55  Vic.  c.  25,  s.  4,  on  the  ground  that  the  court 
is  made  "an  advisory  board  of  the  federal  executive,  substi- 
tuted, pro  hoc  vice,  for  the  law  oflQcers  of  the  Crown,  and  not 
performing  any  of  the  usual  functions  of  a  court  of  appeal, 
nay,  of  any  court  of  justice  whatever;"  but  since  the  point 
had  not  been  raised  and  the  answer  would  bind  no  one,  he  con- 
cluded to  answer.^^  This  is  the  first  opinion  from  which  an 
appeal  was  taken  to  the  Privy  Council^  and  it  is  worthy  of 
note  that  the  very  learned  Lords^  who  dealt  with  the  case 
there  took  no  notice  of  Taschereau,  J.,'s  demurrer,  merely 
recommending  that  the  opinions  of  the  supreme  court  be  de- 
clared incorrect.  But  two  of  these  same  Lords^  joined  a  year 
later  in  an  important  dictum  restrictive  of  the  advisory  opinion 
practice.  The  governor-general  had  referred  eight  questions 
concerning  the  power  of  provincial  legislatures  to  pass  pro- 
hibitory liquor  laws,  and  asked  specifically  if  the  Ontario 
legislature  had  been  within  its  powers  in  enacting  53  Vic.  c. 
56,  as  explained  by  54  Vic.  c.  46.^  The  supreme  court  answered 
No  to  all  questions  and  an  appeal  was  taken  to  the  Privy  Coun- 
cil.^  The  Ontario  legislation  was  considered  without  question, 
but  the  Council  prefaced  their  answers  to  the  general  questions 
with  these  words:  "These  differ  from  the  question  which  has 

^^  In  re  Certain  Statutes  of  .  .  .  Manitoba  rel.  to  Education,  22  Can. 
S.  C.  R.  577. 

342  Brophy  et  al.  v.  Attorney-General  of  Manitoba  (1895)  A.  C.  202. 

343  Lord  Herschell,  L.  C,  Lord  Watson,  Lord  MacNaghten,  and  Lord 
Shand. 

34*  Lord  Herschell  and  Lord  Watson. 

345  In  re  Provincial  Jurisdiction  to  Pass  Prohibitory  Liquor  Laws,  24 
Can.  S.  C.  R.  17Q 

34«  Attorney-General  for  Ontario  v.  Attorney-General  for  Dominion 
et  al.  (1896)  A.  C.  348. 


HISTORY  OF  THE  ADVISORY  OPINION  83 

already  been  answered  in  this  respect,  that  they  relate  to 
matters  which  may  possibly  become  litigious  in  the  future, 
but  have  not  as  yet  given  rise  to  any  real  and  present  contro- 
versy. Their  Lordships  must  further  observe  that  these  ques- 
tions, being  in  their  nature  academic  rather  than  judicial,  are 
better  fitted  for  the  consideration  of  the  officers  of  the  Crown 
than  of  a  court  of  law.  The  repHes  to  be  given  to  them  will 
necessarily  depend  upon  the  circumstances  in  which  they  may 
arise  for  decision.  ...  It  must  therefore  be  understood  that 
the  answers  which  follow  are  not  meant  to  have,  and  cannot 
have,  the  weight  of  a  judicial  determination,  except  in  so  far 
as  their  Lordships  may  have  occasion  to  refer  to  the  opinions 
which  they  have  aheady  expressed  in  discussing  the  seventh 
question."^'  Taschereau,  J.,  referred  to  this  dictum  with 
approval  in  the  Provincial  Fisheries  case,^^  where,  too,  he 
repeated  his  statement  that  the  opinions  given  to  the  governor- 
general  "bind  no  one,  not  even  ourselves. "^^     On  appeal, 

^"^  L.c.  at  p.  370.  See  also  the  words  of  the  Judicial  Committee  in 
Attorney-General  for  Ontario  v.  Hamilton  Street  Railway  Company  et 
al.  (1903)  A.  C.  524,  an  appeal  from  an  advisory  opinion  statute  in  Ontario: 
"It  would  be  inexpedient  and  contrary  to  the  established  practice  of  this 
Board  to  attempt  to  give  any  judicial  opinion  upon  those  questions.  They 
are  questions  proper  to  be  considered  in  concrete  cases  only;  and  opinions 
expressed  upon  the  operation  of  the  sections  referred  to,  and  the  extent  to 
which  they  are  applicable,  would  be  worthless  for  many  reasons.  They 
would  be  worthless  as  being  speculative  opinions  on  hypothetical  questions. 
It  would  be  contrary  to  principle,  inconvenient  and  inexpedient  that  opin- 
ions should  be  given  upon  such  questions  at  all.  When  they  arise,  they  must 
arise  in  concrete  cases,  involving  private  rights;  and  it  would  be  extremely 
unwise  for  any  judicial  tribimal  to  attempt  beforehand  to  exhaust  all  possible 
cases  and  facts  which  might  occur  to  qualify,  cut  down  and  over-ride  the 
operation  of  particular  words  when  the  concrete  case  is  not  before  it.'* 
(at  p.  529). 

***  In  the  matter  of  Jurisdiction  over  Provincial  Fisheries,  26  Can. 
S.  C  R.  444. 

**'  "Our  answers  are  merely  advisory,  and  we  have  to  say  what  is  the 
law  as  heretofore  judicially  expounded,  not  what  is  the  law  according  to 
our  opinion.    We  determine  nothing.    We  are  mere  advisers,  and  the 


84        DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

the  Privy  Council  refused  to  answer  questions  in  this  same  case 
concerning  the  rights  of  riparian  owners,  because  the  latter 
were  not  parties  to  the  litigation.^^** 

But  the  dictum  of  the  Privy  Council  in  1896  only  came 
to  full  fruition  in  1905  and  1906.  The  governor-general 
referred  to  the  supreme  court  questions  concerning  the  right 
of  the  Ontario  legislature  to  enact  certain  statutes,  past  and 
pending,  and  concerning  the  right  of  provincial  legislatures  in 
general  to  pass  Sunday  labor  acts.^^^  One  of  the  counsel  who 
appeared  questioned  the  jurisdiction  of  the  court  in  his  argu- 
ment. The  majority  of  the  court  agreed  that  the  hypothetical 
questions  of  a  general  nature  proposed  were  not  "within  the 
purview  of  the  section."  They  admitted  that  questions  as 
to  the  constitutionality  of  existing  legislation  were  within  the 
section,  but  claimed  that  the  words  "  touching  any  other  mat- 
ter" should  be  considered  "as  within  the  rule  ejusdem  generis, ^^ 
and  might  refer  to  administrative  or  departmental  orders 
issued  pursuant  to  a  statute.  However,  since  the  practice 
had  been  for  the  supreme  court,  and  the  Privy  Council  as  well, 
to  answer  questions  similar  to  those  under  discussion,  they 
would  give  their  opinions.  Sedgewick,  J.,  dissented  on  the 
grounds  that  the  amendment  of  1891  was  not  intended  to  limit 
the  governor's  power  of  reference,  and  that  the  rule  ejusdem 
generis  did  not  apply  (though  even  if  it  did,  he  thought  the 
reference  here  was  within  that  rule).  Idington,  J.,  dissents  from 
both  these  views  very  forcibly.    In  a  cogent  argument  of  some 


answers  we  give  bind  no  one,  not  even  ourselves.  The  questions  are  of 
the  nature  of  those  upon  which  the  Privy  Covincil  in  the  recent  case  made 
remarks  that  will,  I  hope,  restrict  in  the  future  references  such  as  the  present 
one  by  the  Department  of  Justice."  Cf.  the  remarks  of  the  same  judge 
in  the  Prmce  Edward  Island  representation  case,  33  Can.  S.  C.  R.  594. 

"°  Attorney-General  of  Canada  v.  Attorneys-General  for  Ontario, 
Quebec  and  Nova  Scotia  (1898)  A.  C.  700. 

*•*  In  the  matter  of  the  Jurisdiction  of  a  Province  to  Legislate  Respect- 
ing Abstention  from  Labor  on  Sunday,  35  Can.  S.  C.  R.  58L 


HISTORY  OF  THE  ADVISORY  OPINION  85 

length,  he  insists  that  there  is  no  sound  authority  from  prece- 
dent or  statute  to  give  opinions  on  speculative  questions.  He 
closes  his  refusal  in  these  words:  "The  jurisdiction  to  pass 
upon  proposed  or  only  possible  future  legislation,  such  as  the 
governing  power  of  the  people  might  never  assent  to,  is  one 
of  so  grave  a  character,  fraught  with  such  far-reaching  conse- 
quences, and  such  a  departure  from  the  recognized  principle 
of  severing  and- keeping  as  distinct  as  possible  the  respective 
powers  and  duties  of  the  legislative,  executive  and  judicial 
functions  of  Government,  that  I  would  desire  to  see  the  power 
we  are  asked  here  to  exercise  distinctly  and  clearly  conferred 
by  ParUament,  if  it  is  to  be  conferred  at  all,  rather  than  by  an 
assumption  of  its  existence  on  such  slender  basis  as  is  alleged 
here  to  have  expressed  its  existence." 

The  legislature  was  not  slow  to  give  the  learned  justice  the 
assurance  asked,  and  at  the  same  time  dealt  conclusively  with 
the  ejusdem  generis  argument.  By  6  Edward  VII  c.  50,  in 
addition  to  the  questions  enumerated  in  the  1891  statute,  the 
governor  in  council  was  empowered  to  refer  important  ques- 
tions touching  the  powers  of  the  Dominion  or  provincial  legis- 
latures, "whether  the  particular  power  in  question  has  been 
or  is  proposed  to  be  executed,"  or  touching  "any  other  matter, 
whether  or  not  in  the  opinion  of  the  court  ejusdem  generis  with 
the  foregoing  enumerations,"  and  "any  question  touching 
any  of  the  matters  aforesaid,  so  referred  by  the  governor  in 
council  shall  be  conclusively  deemed  to  be  an  important  ques- 
tion." This  last  provision  is  probably  the  result  of  practice 
in  the  United  States,  since  there  is  no  indication  that  the  Cana- 
dian judges  were  disposed  to  test  the  magnitude  of  a  question's 
importance.  The  present  form  of  the  advisory  opinion  clause, 
as  included  in  the  Supreme  Court  Act  of  1906,^^^  is  practically 
a  re-enactment  of  the  provisions  of  1891,  as  amended  by  the 
statute  of  Edward  VU. 

»'  R.  S.  C.  1906,  c.  139,  s.  60.     See  text  in  Appendix  II. 


86   DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

Still,  under  such  an  explicit  enactment,  there  were  rumbhngs 
of  judicial  unrest.  In  a  reference  as  to  the  powers  of  the  attor- 
ney-general's deputies  in  Alberta  and  Saskatchewan  under  the 
Criminal  Code,^^^  Davies,  J.,  says  the  first  three  questions 
practically  request  the  justices  to  sit  as  a  court  of  appeals 
over  the  judgment  of  the  supreme  court  of  Saskatchewan  in 
The  King  v.  Duff,  and  only  answers  with  great  reluctance  under 
the  imperative  provisions  of  the  statute.  Anglin,  J.,'s  reply 
is  to  the  same  effect.  Girouard,  J.,  only  yields  because  the 
opinion  can  have  no  legal  effect;  and  the  persistent  Idington, 
J.,  doubts  whether  section  101  of  the  British  North  America 
Act  is  broad  enough  to  permit  the  legislature  to  make  the 
supreme  court  a  "court  or  commission  of  general  inquiry," 
as  is  done  in  the  act  of  1906.  Finally  the  constitutionahty 
of  that  statute  came  squarely  to  an  issue  in  1910.^^  The 
governor's  reference  included  both  general  and  particular 
questions  regarding  the  powers  of  provincial  legislatures,  under 
the  British  North  America  Act,  to  incorporate  companies 
(especially  insurance  companies)  and  regarding  the  constitu- 
tionahty of  the  Insurance  Act  of  1910  (Dominion).  The  counsel 
who  appeared  at  the  hearing  protested  against  any  considera- 
tion of  the  questions,  arguing  that  section  60  of  the  Supreme 
Court  Act  of  1906  was  ultra  vires,  and  that  previous  opinions 
were  all  given  in  cases  where  everyone  interested  had  consented, 
so  that  the  question  of  constitutionahty  had  never  been  raised. 
They  claimed,  too,  that  the  provincial  courts  would  feel  bound 
as  if  the  opinion  were  a  judgment.  Fitzpa trick,  C.  J.,  felt 
bound  to  answer,  both  by  the  statute  and  the  precedents, 
subject  to  the  right  of  the  court  "to  make  all  proper  represen- 
tations if  it  appears  to  us  during  the  course  of  the  argument, 
or  thereafter,  that  to  answer  such  questions  might  in  any  way 

"« In  re  Criminal  Code,  43  Can.  S.  C.  R.  434. 

•"In  re  References  by  the  Governor-General  in  Council,  43  Can. 
S.  C.  R.  536. 


HISTORY  OF  THE  AD\T:S0RY  OPINION  87 

embarrass  the  administration  of  justice."  He  states  clearly 
that  in  his  opinion  the  judges  of  the  Canadian  supreme  court 
are  the  ofi&cial  advisers  of  the  executive,  after  the  EngUsh 
model.  Girouard,  J.,  dissented  from  this,  holding  that  section 
60  (1)  b  was  ultra  vires.  Duff,  Anglin  and  Davies,  JJ.,  all 
agreed  with  the  chief  justice.  The  last  mentioned  justice 
thought  that  the  statute  was  within  the  British  North  America 
Act,  s.  101,  since  practically  it  made  the  justices  an  "additional 
court  for  the  better  administration  of  the  laws  of  Canada." 
Idington,  J.,  of  course,  dissented.  Courts  should  not  be  forced 
to  prejudge  cases,  he  said,  and  when  referred  questions  concerned 
matters  in  dispute  between  the  Dominion  and  the  provinces, 
to  reply  was  like  expressing  an  opinion  to  a  possible  litigant 
in  advance.  Moreover,  by  section  91  of  the  British  North 
America  Act,  the  Dominion  ParUament  had  no  power  over 
subjects  assigned  exclusively  to  provincial  legislatures.  The 
administration  of  justice  in  the  provinces  had  been  assigned 
to  them,  and  ParUament  could  only  create  a  court  of  appeal, 
and  courts  to  administer  the  laws  of  Canada. 

The  provinces  promptly  appealed  the  question  of  jurisdic- 
tion to  the  Privy  Coimcil.^  Here  the  whole  matter  was 
carefully  considered  by  Lords  of  great  erudition,^  and  the 
constitutionaUty  of  the  statute  was  unanimously  sustained. 
The  elaborate  argument  of  the  appellants  is  exceedingly  inter- 
esting because  of  its  bearing  on  the  theory  of  advisory  opinions,^^ 
but  is  almost  entirely  irrelevant  to  the  constitutionaUty  of 
the  act.  It  is  for  the  most  part  merely  a  ''commentary  on 
the  wisdom  of  such  an  enactment,"  emphasizing  the  possible 
perversion  of  justice  in  the  operation  of  the  act.    But    "the 

***  Attorney-General  for  Ontario  v.  Attorney-General  for  Canada  (1912) 
A  C.  571. 

'"Earl  Lorebum,  L.  C,  Lord  MacNaghten,  Lord  Atkinson,  Lord 
Robson,  and  Lord  Shaw  of  Dunfermline. 

*^It  is  thus  summarized  in  the  judgment:  "The  argument  on  behalf 
of  the  provinces  proceeded  upon  the  following  lines.  They  said  that  the 
power  to  ask  questions  of  the  supreme  court  sought  to  be  bestowed  .  .  . 


88   DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT , 

argument  that  to  put  questions  is  ultra  vires,  must  be  the  same 
whether  the  principle  is  rightly  or  wrongly  used."  The  Lord 
Chancellor  admitted  the  possibility  of  abuse,  with  attendant 
evils,  but  did  not  think  it  imminent,  because  the  answers 
were  only  advisory,  and  because  the  justices  could  qualify 
their  replies  if  the  questions  did  not  admit  of  accurate  answers 
or  could  "make  the  necessary  representation  to  the  Governor- 
General  in  Council."  But  even  abuse  did  not  import  uncon- 
stitutionality. ''What  in  substance  their  Lordships  are  asked 
to  do  is  to  say  that  the  Canadian  ParHament  ought  not  to  pass 
laws  like  this  because  it  may  be  embarrassing  and  onerous  to 
a  Court,  and  to  declare  this  law  invalid  because  it  ought  not 
to  have  been  passed. "  In  effect  the  ratio  decidendi  of  the  opin- 
ion of  the  Privy  Council  is  that  the  presumption  that  the  statute 
is  constitutional  has  not  been  overcome  by  the  argument  as 
to  desirability  put  forward  by  the  appellants.     But  incidentally 

by  the  impugned  act,  is  so  wide  in  its  terms  as  to  admit  of  a  gross  inter- 
ference with  the  judicial  character  of  that  court,  and,  therefore,  of  grave 
prejudice  to  the  rights  of  the  provinces  and  of  individual  citizens.  Any 
question  .  .  .  can  be  put  to  the  supreme  court  and  they  are  required  to 
answer  it,  with  their  reasons.  Though  no  direct  effect  is  to  result  from  the 
answer  so  given,  and  no  right  or  property  is  thereby  to  be  adjudged,  yet, 
say  the  appellants,  the  indirect  result  of  such  a  proceeding  may  be  and  will 
be  most  fatal.  When  the  opinion  of  the  highest  Court  of  Appeal  for  all 
Canada  has  been  given  upon  matters  both  of  law  and  of  fact,  it  is  said  it  is 
not  in  human  nature  to  expect  that,  if  the  same  matter  is  again  raised  upon 
a  concrete  case  by  an  individual  litigant  before  the  same  Court,  its  members 
can  divest  themselves  of  their  preconceived  opinions;  whereby  may  ensue 
not  merely  a  distrust  of  their  freedom  from  pre-possession,  but  actual 
injustice,  inasmuch  as  they  will  in  fact,  however  unintentionally,  be  biassed. 
The  appellants  further  insist  that  although  the  Act  in  question  provides 
for  requiring  argument,  and  directing  that  counsel  shall  be  heard  before 
the  questions  are  answered,  yet  the  persons  who  may  be  affected  by  the 
answers  cannot  be  known  beforehand,  and  therefore  will  be  prejudiced 
without  so  much  as  an  opportunity  of  stating  their  objections  before  the 
Supreme  Court  has  arrived  at  what  will  virtually  1  o  a  determination  of 
their  rights." 


HISTORY  or  THE  ADVISORY  OPINION  89 

the  Lord  Chancellor  goes  on  to  strengthen  the  presumption 
of  constitutionaUty  by  reviewing  the  EngUsh  practice  of  judicial 
consultation,  and  by  pointing  out  that  apparently  the  thought 
of  unconstitutionality  was  not  entertained  by  any  of  the  learned 
Lords  who  had  considered  the  six  previous  appeals  from  opin- 
ions rendered  under  the  Canadian  statute. 

So  the  advisory  opinion  will  undoubtedly  remain  in  the 
Canadian  system  until  the  Parhament  decides  that  its  use  is 
unwise.  There  is  no  indication  that  Parliament  is  so  minded 
at  present.  The  device  has  been  employed  very  sparingly, 
and  the  evil  effects,  if  any,  have  not  been  apparent.  I  have 
been  able  to  discover  only  eighteen  references  during  a  period 
of  forty-one  years.  Of  these,  appeals  were  taken  to  the  Judicial 
Committee  of  the  Privy  Council  in  seven  cases. 

Before  passing  on  to  consider  advisory  opinions  in  the  prov- 
inces, mention  might  be  made  of  two  other  forms  of  extra- 
causal  advice  under  Dominion  legislation.  The  Railway  Act 
makes  it  a  duty  of  the  supreme  court^^  to  give  its  opinion  upon 
questions  of  law  involved  in  any  case  stated  by  the  board, 
whether  ''of  its  otvti  motion"  or  at  the  request  of  the  governor 
in  council  or  of  a  third  party.  The  justices  have  given  opinions 
freely  under  this  section.  Also  section  61  of  the  Supreme 
Court  Act  of  1906  provides  that  the  senate  or  house  of  conmions 
may,  by  a  rule  or  order,  refer  any  private  bill  or  petition  to 
the  court  or  any  two  of  the  judges,  for  an  opinion  thereon.^^ 

'^'"1.  The  Board  may,  of  its  own  motion,  or  upon  the  application 
of  any  party,  and  upon  such  security  being  given  as  it  directs,  or  at  the 
request  of  the  Governor  in  Coimcil,  state  a  case,  in  writing,  for  the  opinion 
of  the  Supreme  Court  of  Canada,  upon  any  question  which  in  the  opinion 
of  the  Board  is  a  question  of  law. 

2.  The  Supreme  Court  of  Canada  shall  hear  and  determine  the  ques- 
tion or  questions  of  law  arising  thereon,  and  remit  the  matter  to  the  Board 
with  the  opinion  of  the  Court  thereon."  3  Edw.  VII,  c.  58,  s.  43.  See 
R.  S.  C.  1906,  c.  37,  s.  55. 

^'  "The  Court,  or  any  two  of  the  judges  thereof,  shall  examine  and 
report  upon  any  private  bill  or  petition  for  a  private  bill  presented  to  the 


90   DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

According  to  Cameron,^^''  only  one  bill  has  been  referred  under 
this  section — the  Bill  to  Incorporate  the  Christian  Brothers.^^^ 
2.  The  Provinces. 

Seven  of  the  nine  provinces  have  adopted  the  advisory 
opinion,^^^  and  in  all  of  them,  as  in  the  Dominion,  the  pro- 
vision is,  of  course,  statutory.  In  three  of  them  the  enactment 
antedated  the  first  revision  of  the  Dominion  act  on  the  same 
subject,  for  the  advisory  opinion  statutes  in  Ontario,  Nova 
Scotia  and  Manitoba  are  all  dated  1890.  By  referring  to 
Appendix  II,  it  will  be  seen  that  the  text  is  very  much  the 
same  in  all  three  statutes,  and  the  improvements  upon  the 
Dominion  act  of  1875  evidently  furnished  the  basis  for  the 
later  amendments  to  that  act.  It  would  seem  that  one  of  these 
was  the  antetype  of  the  other  two,  but  I  have  been  unable  to 
ascertain  which  is  earliest  in  point  of  time.  The  title  of  the 
Ontario  statute  is  interesting  as  throwing  some  light  on  the 
chief  purpose  of  the  scheme.  It  is  called  ''An  Act  for  expediting 
the  decision  of  Constitutional  and  other  provincial  Questions. " 
The  scope  of  the  permission  to  refer  is  very  broad,  covering 
any  matter  which  the  lieutenant-governor  in  council  ''thinks 
fit  to  refer, "  as  in  the  1875  Dominion  act.  But  in  the  provin- 
cial acts  further  particularization  has  not  taken  place,  no  amend- 
ments having  been  made  to  the  original  statutes.  In  all  three 
cases,  the  opinion,  with  reasons,  is  to  be  given  "in  like  manner 
as  in  the  case  of  a  judgment  in  an  ordinary  action."  Also 
they  all  provide  that  if  the  question  relates  to  the  constitu- 
tionality of  a  provincial  statute,  the  attorney-general  of 
Canada  shall  be  notified,  "in  order  to  be  heard  if  he  sees  fit;" 
and  in  general  that  at  the  discretion  of  the  court,  any  person 
or  persons  interested  in  any  question  referred  might  be  notified 

Senate  or  House  of  Commons,  and  referred  to  the  Court  under  any  rules  or 
orders  made  by  the  Senate  or  House  of  Commons."  R.  S.  C.  1906,  c.  139, 
s.  61. 

^^  Supreme  Court  Practice,  p.  268. 
.   3«il876.  Cass.  Prac.  59. 

^^  See  text  of  these  provisions  in  Appendix  II. 


HISTORY  OF  THE  ADVISORY  OPINION  91 

of  the  hearing,  for  the  same  purpose;  and  if  any  interests  af- 
fected are  not  represented  by  counsel,  the  court  may  appoint 
counsel  to  act  in  their  behalf,  at  pubUc  expense.  But  the 
effect  of  the  opinion  given  varies.  In  the  statutes  of  Ontario 
and  Manitoba,  the  opinion  "shall  be  deemed  a  judgment  of 
the  court,  and  an  appeal  will  lie  therefrom  as  in  the  case  of  a 
judgment  in  an  action."  But  in  the  Nova  Scotia  act,  the 
opinion  is  declared  to  be  advisory,  and  is  to  be  treated  as  a 
final  judgment  of  the  court  only  for  purposes  of  appeal  to  the 
Canadian  supreme  court  or  to  the  Privy  Council. 

British  Columbia  followed  closely  in  the  steps  of  these 
three,  enacting  a  statute  in  1891,  which  differed  from  the 
Manitoba  statute  in  only  one  important  particular — there  was 
no  provision  for  the  appointment  of  counsel  to  argue  for  interests 
not  represented.  The  same  omission  occurs  in  the  Quebec 
act  of  1898;  also  here  there  is  no  provision  for  notifying  the 
Canadian  attorney-general  in  references  connected  with  the 
constitutionaUty  of  provincial  legislation.  Also  in  section  4 
it  is  declared  that  the  opinion  is  advisory  only  and  cannot  be 
appealed  from.  This  is  undoubtedly  the  result  of  Union  Col- 
Uery  Company  of  British  Columbia  v.  Attorney-General  of 
British  Columbia  et  al.,^  where  Taschereau,  J.,  held  that  no 
appeal  would  He  to  the  Canadian  supreme  court  from  an 
opinion  given  by  the  supreme  court  of  British  Columbia  under 
the  statute;  he  declared  there  was  no  action,  no  parties  and 
no  controversy,  and  that  the  British  Columbia  legislature  could 
not  extend  the  jurisdiction  of  the  Canadian  supreme  court 
by  enacting  that  opinions  given  as  in  this  case  should  be  "deemed 
a  judgment."  Still  Saskatchewan  did  not  benefit  by  this  de- 
cision, for  the  "Act  respecting  the  Decision  of  Constitutional 
and  other  Legal  Questions,"  of  1901,  is  in  all  essential  parti- 
culars identical  with  the  Ontario  act  of  1890.  The  New 
Brunswick  statute  was  passed  in  1906. 

3«27  Can.  S   C.  R.  637. 


92        DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

Very  little  use  has  been  made  of  the  privilege  granted  by 
these  statutes.  I  have  found  only  four  references  in  Ontario. 
In  three  of  these,^^  appeals  were  taken  to  the  Privy  Council, 
which  considered  them  without  hesitation.^^^  The  fourth  case^^ 
is  interesting  because  of  the  careful  examination  of  the  advisory 
opinion  act.  The  question  referred  concerned  the  construction 
of  a  section  of  the  Ontario  Medical  Act,  1897 — did  the  words 
''to  practice  medicine"  cover  cases  where  drugs  and  similar 
substances  were  not  used?  All  of  the  judges  were  reluctant 
to  answer  because  of  the  difficulty  of  making  a  categorical 
reply  to  so  general  a  question;  Meredith,  J.  A.,  also  objected 
on  the  ground  that  the  reference  was  practically  an  appeal 
from  Reg.  v.  Stewart.^^^  The  majority  replied,  in  substance, 
that  the  phrase  in  question  might  cover  such  cases,  but  that 
each  would  have  to  be  decided  on  its  own  merits.  Moss, 
C.  J.  O.,  observes  that  in  spite  of  the  statutory  declaration  that 
such  an  opinion  "shall  be  deemed  a  judgment,"  it  is  really 
"for  the  information  of  the  Lieutenant-Governor  in  Council" 
and  is  only  advisory  in  character. 

But  one  case  from  British  Columbia  has  come  to  my  at- 
tention, the  question  as  to  the  Coal  Mines  Regulation  Act 
already  mentioned.^^^  A  single  reference  has  been  made  in 
Nova  Scotia,  a  reference  in  1916  regarding  the  Nova  Scotia 
Temperance  Act,  upon  which  argument  has  not  yet  been  heard 
(January  29,  1917).  The  Attorney-General  of  New  Brunswick 
informs  me  that  no  references  for  advisory  opinions  have  been 


*"  Attorney-General  of  Ontario  v.  Attorney-General  for  Dominion 
of  Canada  (1894)  A.  C.  189;  Attorney-General  for  Dominion  v.  Attorney- 
General  for  Ontario  (1898)  A.  C.  247;  Attorney-General  for  Ontario  v. 
Hamilton  Street  Railway  Company  et  al.  (1903)  A.  C.  524. 

^^  Cf.  Union  Colliery  Company  of  British  Columbia  v.  Attorney- 
General  of  British  Columbia  et  al.,  27  Can.  S.  C.  R.  637. 

3««In  re  Ontario  Medical  Act  (1906),  13  Ont.  L.  R.  501. 

^^  17  Ont.  R.  4. 

^*  See  p.  91  supra. 


I 


HISTORY  OF  THE  ADVISORY  OPINION  93 

made  in  that  province,  and  I  have  discovered  none  in  Quebec, 
Manitoba  or  Saskatchewan. 

In  at  least  two  provinces  there  is  a  scheme  for  testing  the 
constitutionahty  of  legislation  that  might  be  mentioned  in 
passing.  It  is  provided  both  in  Ontario^^^  and  in  Alberta^^° 
that  the  supreme  court  shall  have  jurisdiction  to  entertain 
an  action  at  the  instance  of  either  the  attorney-general  for 
the  Dominion  or  the  attorney-general  for  the  province  for 
a  declaration  as  to  the  vaUdity  of  any  statute,  or  any  pro- 
vision in  any  statute  (of  the  province),  "though  no  further 
reUef  should  be  prayed  or  sought.  "^^^  Very  few  appUcations 
have  been  made  under  these  acts.  An  example  of  such  an 
application  in  Ontario  is  Attorney-General  of  Canada  v.  Attor- 
ney-General of  Ontario, ^^2  where  the  supreme  court  for  the 
Dominion  allowed  an  appeal  from  a  declaration  by  the  Ontario 
court.^^^  Also  it  is  provided  in  section  113  of  the  Alberta 
Land  Titles  Act  that  whenever  a  question  arises  as  to  the 
registrar's  duties  under  the  act,  or  as  to  the  construction  or 
legal  validity  of  any  instrument,  the  registrar  may  refer  the 
same  to  a  judge  of  the  supreme  court,  and  the  judge  shall 
decide   the   question. 

D.  In  Other  States 

One  evidence  of  the  strong  Anglo-American  influence  in 
the  Hawaiian  Islands  in  the  middle  of  the  nineteenth  century 
is  the  incorporation  of  an  advisory  opinion  clause  (on  New 
England  principles)  in  the  constitution  of  1852  (Article  88). 
This  was  repeated  as  Article  70  of  the  constitution  of  1864  and 

3«9  Judicature  Act,  R.  S.  O.  c.  51,  s.  57  (2). 

""Judicature  Ordinance,  s.  8  (6). 

»"  Cf.  N.  J.  Comp.  Stat.  IV,  4978,  and  83  N.  J.  L.  303,  for  a  case  undei 
a  somewhat  similar  statute. 

"'  33  S.  C.  R.  458. 

'"  Cf,  Union  Colliery  Company  of  British  Columbia  v.  Attorney- 
General  of  British  Columbia  et  al..  27  Can.  S.  C.  R.  637. 


94        DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

(with  slight  changes)  as  Article  70  of  the  constitution  of  1887. 
It  gave  the  king,  cabinet  or  legislature  power  "to  require  the 
opinions  of  the  justices  of  the  supreme  court  upon  important 
questions  of  law  and  upon  solemn  occasions. "  Thayer^^^  says 
a  number  of  opinions  have  been  given  under  this  clause,  be- 
ginning with  one  of  1884.^^^ 

A  very  interesting  constitutional  device  is  contained  in 
the  Colombian  constitution  of  1886.  The  president  is  given 
a  qualified  veto  on  all  legislation,  having  the  power  to  force 
repassage  by  two-thirds  of  the  members  of  each  house  if  he 
returns  a  bill  with  objections  in  from  six  to  fifteen  days  (depend- 
ing upon  the  length  of  the  bill).  But  if  he  objects  on  the  ground 
that  the  bill  is  unconstitutional  and  if  the  legislature  insists 
on  its  passage,  the  bill  is  to  be  referred  to  the  supreme  court, 
which  has  six  days  to  decide  upon  its  acceptability.  If  the 
decision  favors  the  president's  objections,  the  bill  fails;  if  not, 
it  must  be  sanctioned  and  promulgated  by  the  executive.^^^ 
The  people  seem  to  have  been  satisfied  as  to  the  value  of  such 
an  unusual  arrangement,  for  the  Panamans  repeated  it  in 
their  constitution  of  1904.^^^  I  have  not  been  able  to  ascertain 
whether  the  supreme  court  is  called  upon  to  act  under  this  clause 
very  frequently  or  at  all. 

Colombia  is  responsible  for  still  another  strange  provision 
regarding  the  judiciary.  Article  84^^^  of  the  constitution  of 
1886  gives  the  judges  of  the  supreme  court  the  privilege  of  being 
heard  by  the  legislature  "in  the  discussion  of  bills  relating  to 
civil  matters  and  judicial  procedure."  Three  states  have 
copied  this  clause,  with  some  variations  in  the  wording — Sal- 
vador (Constitution  of  1886,  Article  79),  Honduras  (Constitu- 
tion of  1904,  Article  83)  and  Nicaragua  (Constitution  of  1905, 

"*  Cases  I,  176  n. 

"5  The  Segregation  of  Lepers,  5  Haw.  Rep.  162. 

2^*  For  the  text  of  the  provision  see  Appendix  III. 

"'  Article  105.     For  the  text  of  the  provision  see  Appendix  III. 

"*  For  the  text  see  Appendix  III. 


HISTORY  OF  THE  ADVISORY  OPINION  95 

Article  71).^^^  All  of  these  imitators,  however,  go  even  farther 
than  Colombia,  for  they  permit  the  judges  to  introduce  or 
originate  bills  relating  to  the  codes  of  the  repubUc  as  well  as 
as  to  be  heard  in  the  discussion  of  all  such  bills  not  coming  from 
them.  The  desirability  of  such  provisions  will  be  considered 
in  a  later  chapter. 

3^^  For  the  text  of  these  provisions  see  Appendix  III. 


CHAPTER  II 
THE  ADVISORY  OPINION  IN  PRACTICE 

A.  The  Source  of  Interrogations 
The  cases  considered  in  the  subsequent  discussion  include 
(unless  otherwise  stated)  only  the  opinions  rendered  in  the 
eight  States  of  the  Union  where  the  advisory  opinion  has  ex- 
isted under  the  constitution.  The  reports  yield  a  total  of  four 
hundred  and  ten  such  opinions.  Fifty-one  of  these  are  credited 
to  Florida  and  South  Dakota,  where  the  governor  alone  has 
the  benefit  of  the  clause.  The  remaining  three  hundred  and 
fifty-nine  belong  to  States  which  permitted  to  the  executive 
and  legislative  departments  alike  the  right  of  judicial  consulta- 
tion. In  this  group  the  legislative  department  is  responsible 
for  two  hundred  and  sixteen  opinions,  the  executive  for  one 
hundred  and  forty-three.  The  inequality  of  distribution  is 
probably  due  to  two  causes.  Since  the  firm  establishment  in 
the  United  States  of  the  judicial  power  to  declare  acts  of  the 
legislature  to  be  null  and  void  because  of  failure  to  conform 
to  the  constitution,  it  has  become  increasingly  evident  that  it 
would  often  be  very  desirable  to  ascertain  in  advance  of  the 
passage  of  a  measure,  how  the  supreme  court  will  look  upon  its 
validity  if  called  upon  to  apply  it.  Questions  with  this  end 
in  view  naturally  issue  from  the  legislature  while  the  bill  is 
under  consideration.  A  majority  of  the  legislative  questions 
are  of  this  nature,  and  many  of  the  executive  questions  as  well, 
for  the  governor  has  often  sought  advice  from  the  supreme 
court  before  signing  or  vetoing  bills  presented  to  him.  Of 
the  three  hundred  and  fifty-nine  opinions,  one  hundred  and 
twenty-eight  were  in  response  to  questions  concerning  pending 
or  possible  legislation.    The  second  cause  is  the  fact  that  the 


THE  ADVISORY  OPINION  IN  PRACTICE  97 

executive  department  has  at  hand  a  more  prompt  and  conve- 
nient adviser  in  ordinary  situations  in  the  person  of  the  attorney- 
general.  The  legislature  naturally  prefers  the  opinion  of  those 
officials,  who  will  have  to  pass  finally  upon  the  matter  in  ques- 
tion, whose  hostility  to  a  project  will  be  fatal  in  spite  of  legisla- 
tive approval.  The  governor  feels  the  same  way  in  important 
and  difficult  affairs  that  may  possibly  come  before  a  court 
later,  but  in  most  of  the  cases  that  call  for  executive  decision 
and  action,  the  questions  of  law  are  elementary,  and  it  is  almost 
certain  that  the  executive  action  will  be  final. 

A  more  minute  examination  of  the  initiation  of  inquiries 
in  some  one  State  may  be  of  interest.  Colorado  affords  the 
best  opportunity  for  detailed  investigation  in  this  as  in  other 
particulars,  because  of  the  concentration  of  a  relatively  large 
number  of  cases  within  a  few  decades.  In  that  State  there  have 
been  sixty-nine  legislative  inquiries,  thirty-six  emanating  from 
the  senate,  thirty-two  from  the  house  of  representatives,  and 
one  from  the  general  assembly.  Six  of  these  are  questions  deal- 
ing with  the  advisabihty  or  possibiUty  of  contemplated  legisla- 
tion which  apparently  had  not  yet  been  introduced.  Fifty- 
eight  are  questions  involving  the  constitutionality  of  bills 
actually  in  course  of  passage.  In  thirty-six  of  these  sixty-four 
cases,  I  have  been  able  to  discover  from  house  and  senate 
journals,  the  immediate  interrogators.  In  one  early  case  the 
bill  was  referred  back  to  the  committee  in  charge  with  instruc- 
tions to  ask  the  supreme  court  for  its  opinion.^  There  are  six 
cases  where  the  committee  in  charge,  or  some  member  thereof, 
proposed  the  resolution  caUing  upon  the  justices  for  their 
opinion,  without  any  prompting.^    Senators  or  representatives 

» In  the  matter  of  the  Constitutionality  of  HB.  No.  18,  9  Colo.  623. 

» In  the  matter  of  the  Constitutionality  of  SB.  No.  76,  9  Colo.  623; 
In  the  matter  of  HB.  No.  231,  9  Colo.  624;  In  the  matter  of  the  Constitu- 
tionaUty  of  HB.  No.  270  and  SBB.  No.  69  and  No.  106,  9  Colo.  635;  In 
the  matter  of  the  Constitutionality  of  Sec.  9,  of  HB.  No.  122,  9  Colo.  639; 
In  re  HB.  No.  238,  12  Colo.  337;  In  re  Annexation  and  Consolidation  of 
School  Districts,  SB.  No.  9,  26  Colo.  136. 


98         DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

having  a  local  interest  in  the  bill  under  suspicion  are  responsible 
for  three  opinions.  But  in  the  great  majority  of  instances, 
the  interrogating  resolution  is  introduced  either  by  the  member 
who  introduced  the  bill  under  discussion  (fifteen  cases), ^  or  by 
the  judiciary  committee,  usually  following  the  directions  of 
the  house  (eleven  cases).'*  The  former  of  these  two  methods 
is  the  favorite  modus  operandi  in  recent  years.  These  results 
appear  to  corroborate  the  complaint  registered  by  O.  F.  A. 
Greene  in  1890^  that  "  the  supporters  of  a  measure,  in  order  to 
escape  the  argument  of  unconstitutionahty  by  their  opponents, 
seek  such  opinions,  hoping  for  a  favorable  response."  This 
particular  criticism,  intended  as  an  objection,  is  unreasonable, 
for  the  chief  value  of  the  advisory  opinion  to  legislatures  is 
in  ascertaining  the  unconstitutionahty  of  a  measure  before 
placing  it  upon  the  statute  books;  and  when  the  question  of 
constitutionality  is  raised  in  debate  already,  there  is  no  reason 
why  the  sponsor  of  the  bill  should  not  be  the  author  of  an  in- 
quiry regarding  its  constitutionality.    Indeed  he  may  be  acting 


»In  re  HB.  No.  165,  15  Colo.  593,  595;  In  re  Bounties,  18  Colo.  273, 
In  re  Extension  of  Boundaries  of  the  City  of  Denver,  18  Colo.  288;  In  re 
Amendments  of  Legislative  Bills,  19  Colo.  356;  In  re  HB.  No.  203,  21  Colo. 
27;  In  re  a  Bill  Providing  that  Eight  Hours  shall  Constitute  a  Day's  Labor, 
21  Colo.  29;  In  re  HB.  No  107,  21  Colo.  32;  In  re  Constitutionality  of  SB. 
No.  293,  21  Colo.  38;  In  re  ConstitutionaHty  of  an  Act,  21  Colo.  46;  In  re 
Consolidation  of  School  Districts,  SB.  No.  23,  23  Colo.  499;  In  re  HB.  No. 
99,  etc.,  26  Colo.  140;  In  re  SB.  No.  142,  etc.,  26  Colo.  167;  In  re  HB.  No. 
495,  etc.,  26  Colo.  182;  In  re  House  Resolution  No.  10,  50  Colo.  71;  In  re 
Senate  Resolution  No.  4,  54  Colo.  262. 

*  In  the  matter  of  HB.  No.  38,  etc.,  9  Colo.  631;  In  re  SR.  Relating  to 
the  Appropriation  of  Moneys,  etc.,  12  Colo.  287;  In  re  HR.  Relating  to 
HB.  No.  116,  12  Colo.  289;  In  re  SR.  Relating  to  SB.  No.  1,  12  Colo.  290; 
In  re  SR.  Relating  to  SB.  No.  31,  12  Colo.  340;  In  re  HR.  Relating  to  HB. 
No.  218,  etc.,  12  Colo.  359;  In  re  HR.  Relating  to  HB.  No.  349,  12  Colo. 
395;  In  the  matter  of  the  Constitutionality  of  SB.  No.  65,  12  Colo.  466; 
In  re  HR.  No.  25,  15  Colo.  602;  In  re  Inheritance  Tax,  HB.  No.  122,  23 
Colo.  492;  In  re  SB.  No.  27,  etc.,  28  Colo.  359. 

»  See  p.  50  supra. 


THE  ADVISORY  OPINION  IN  PRACTICE  99 

on  the  recommendation  of  a  committee,  as  in  21  Colorado  27. 
In  any  case  if  the  house  deems  the  inquiry  unnecessary,  the 
resolution  can  easily  be  defeated.^  It  is  not  easy  to  verify  the 
accuracy  of  Greene's  observation^  that  "a  legislator  who  finds 
himself  in  a  dilemma  of  either  favoring  a  measure  against  his 
judgment  or  of  making  dangerous  enemies  against  his  own  pet 
schemes,  seeks  a  passage  of  escape  by  thus  shouldering  the  re- 
sponsibility upon  the  court."  Certainly  it  does  not  apply  to 
the  fifteen  opinions  soHcited  by  introducers  of  bills.  But  it 
may  apply  to  the  eleven  cases  referred  by  the  judicial  committee 
which  always  acted  at  the  request  of  the  house  in  committee 
of  the  whole,  so  that  the  real  author  of  the  resolution  is  not  dis- 
coverable. However,  as  the  supreme  court  did  not  declare 
a  bill  unconstitutional  in  a  single  one  of  these  eleven  cases,  it  is 
certain  it  did  not  reUeve  many  legislators  from  facing  the  Judg- 
ment of  their  constituents.  In  the  sixteen  cases  where  the 
supreme  court  has  pronounced  a  proposed  measure  unconstitu- 
tional, there  are  seven  interrogatories  from  the  author  of  the 
measure,  four  from  the  committee  in  charge  and  one  from  a 
member  whose  district  was  affected — all  probably  sincere  and 
not  for  political  effect. 

B.  Nature  of  Questions 

The  subject  matter  of  the  advisory  opinions  rendered  in 
the  United  States  covers  a  great  variety  of  topics  in  both  public 
law  and  private  law.  An  attempt  has  been  made  in  this  section 
to  bring  order  out  of  the  heterogeneity  by  classifying  the  topics 
in  five  groups  as  follows:  (1)  The  Legislative  Department; 
(2)  The  Executive  Department;  (3)  The  Judiciary;  (4)  Suf- 
frage and  Elections;  (5)  Miscellaneous  Matters.  Of  course, 
these  divisions  are  not  mutually  exclusive,  and  one  question  may 
fall  within  two  or  even  more  groups  and  consequently  may  be 

'  Such  a  resolution  was  rejected,  for  example,  in  the  matter  of  HB.  No. 
14  m  1889.    HJ.  1889,  360. 
^The  Nation,  Vol.  50,  50. 


100     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

referred  to  below  in  more  than  one  place.     However,  it  will 

be  endeavored  to  determine  the  class  to  which  a  case  belongs 

by  the  element  which  receives  the  most  emphasis  or  which  is 

the  most  necessary  to  the  inquiry.     It  must  be  remembered, 

too,  that  the  same  reference  often  comprises  several  different 

questions. 

1.  The  Legislative  Department 

a.  Composition  of  the  Legislature.  These  cases^  fall  into 
three  subdivisions:  questions  concerning  the  legislative  dis- 
tricting of  a  State  or  the  apportionment  of  members  of  the 
legislature,  questions  regarding  the  quaUfications  for  member- 
ship in  the  legislature,  and  questions  as  to  the  regularity  of 
elections.  In  the  first  of  these,  there  are  thirteen  opinions. 
The  earliest  one  was  rendered  by  a  Massachusetts  court  in 
1811,^  in  reply  to  an  inquiry  as  to  whether  towns  could  count 
aliens,  as  ratable  polls,  in  determining  the  number  of  represen- 
tives  to  which  they  were  entitled.  The  New  Hampshire  court 
in  1838^°  was  asked  to  deal  with  almost  the  same  question.  In 
both  cases  it  was  declared  that  Hability  to  taxation  was  the 
criterion.  The  Massachusetts  justices  have  given  their  opinion 
upon  the  right  of  representation  of  new  towns,^^  and  as  to  what 
apportionment  applied  during  a  certain  transition  period.^^ 
The  nine  other  cases  deal  with  the  constitutional  duties  of  the 
legislature  in  the  matter  of  apportionment.  Three  are  in 
Massachusetts,^^  three  in  Maine,^'*  and  three  in  Colorado.^^ 

•Except  a  single  extra-constitutional  case  on  the  tenure  of  members 
of  the  legislature — Opinions  of  the  Justices  of  the  Supreme  Court,  etc., 
64  N.  C.  785. 

'  Opin.  of  Justices,  7  Mass.  523. 

"Opinion,  8  N.  H.  573. 

"  Opin.  of  Justices,  6  Cush.  575. 

»  Opin.  of  the  Justices,  157  Mass.  595. 

"Opin.  of  Justices,  10  Gray,  613;  Opin.  of  Justices,  142  Mass.  601; 
and  In  re  Opinion  of  the  Justices,  220  Mass.  609. 

1*  Opin.  of  Justices,  3  Me.  477;  Opin.s  of  the  Justices,  18  Me.  458;  and 
Opin.  of  Justices,  33  Me.  587. 

1*  Veto  Power — Special  Session  of  General  Assembly — 9  Colo.  642; 


THE  ADVISORY  OPINION  IN  PRACTICE  101 

In  this  list  of  thirteen,  the  justices  answered  without  objection 
in  every  case,  except  for  a  partial  refusal  in  18  Maine,  458. 
But  there  are  two  outright  refusals  in  each  of  the  other  groups. 
The  general  question  of  the  eUgibihty  of  naturalized  citizens 
to  the  house  of  representatives  was  readily  answered,^^  but  al- 
most the  same  court  declined  to  express  any  opinion  as  to  the 
eligibihty  of  a  special  justice  of  a  municipal,  district  or  police 
court,  or  as  to  whether  the  election  of  such  a  justice  to  the 
legislature  would  vacate  his  judicial  office,^^  and  a  Maine  court 
followed  their  example  in  1901  in  a  very  similar  reference 
regarding  fish  and  game  commissioners  and  trustees  of  State 
institutions.^^  In  the  third  group,  the  two  refusals  were  in 
response  to  separate  inquiries  by  the  senate  and  house  of  repre- 
sentatives regarding  the  same  question.^^  The  governor  and 
council  had  rejected  votes  for  certain  senatorial  candidates  in 
two  districts  because  of  irregularities,  and  had  declared  other 
candidates  elected;  and  the  senate  had  subsequently  ratified 
this  action.  The  justices  refused  to  express  an  opinion  upon  a 
completed  act  of  the  executive  at  the  request  of  the  legislative 
department,  as  amounting  to  mere  criticism  of  a  coordinate 
branch  of  the  government,  and  added  that  the  action  of  the 
senate  on  the  election  of  its  members  is  conclusive.  Then  there 
are  three  opinions  in  Massachusetts^^  dealing  with  the  electoral 
rights  of  towns.  Finally  there  are  seven  opinions  in  Maine, 
dehvered  upon  four  separate  occasions.  The  question  put  in 
6  Maine,  486,  was  practically  the  same  as  in  15  Massachusetts 
536,  viz.,  if  by  majority  vote  a  town  having  the  right  to  elect  a 

In  the  matter  of  HR.  re  Constitutionality  of  Legislature  Redistricting  State, 
etc.,  12  Colo.  186;  and  In  re  SR.  Relating  to  Constitutionality  of  Proposed 
Reapportionment  Bill,  12  Colo.  187. 

^«  Opin.  of  Justices,  122  Mass.  594. 

1'  Opin.  of  Justices,  122  Mass.  600. 

^*  Opin.s  of  the  Justices,  95  Me.  564. 

18  Opin.  of  the  Justices,  56  N.  H.  570;  Opin.  of  the  Justices,  56  N.  H.  574. 

"Opin,  of  Justices,  15  Mass.  536;  Opin.  of  Justices,  3  Pick.  517;  and 
Opin.  of  Justices,  23  Pick.  547. 


102  DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

representative  waives  that  right,  is  the  minority  bound  by  such 
action?  (The  Maine  house  of  representatives  appended  a 
similar  question  as  to  waiver  by  a  majority  of  towns  in  a  dis- 
trict). The  Massachusetts  justices  thought  the  right  to  elect 
was  corporate  in  character,  and  consequently  the  vote  of  the 
majority  was  binding  on  all.  This  opinion  (as  to  single  towns) 
met  the  approval  of  two  of  the  Maine  justices,  but  Preble, 
J.,  distinguished  between  the  wording  of  the  Massachusetts 
and  Maine  constitutions  and  held  that  in  the  latter  state,  the 
right  was  individual,  and  the  house  of  representatives  acted 
in  accordance  with  this  dissenting  opinion.  In  6  Maine,  514, 
there  is  an  opinion  as  to  the  formalities  necessary  in  an  election 
by  the  two  houses  acting  jointly  to  supply  deficiencies  in  the 
senate,  and  this  is  approved  in  7  Maine,  483.  The  subject  mat- 
ter of  35  Maine,  563,  is  similar.  The  three  cases  of  1880  deal 
with  the  powers  of  the  governor  and  council  as  to  returns  on 
elections  to  the  legislature.^^ 

From  the  twenty-nine  cases  reviewed  in  this  section,  cer- 
tain rules  may  be  readily  deduced.  Under  an  advisory  opinion 
clause,  the  justices  usually  are  willing  to  give  advice  to  either 
house  of  the  legislature  in  matters  pertaining  to  (1)  the  deter- 
mination of  the  number  of  representatives  to  which  a  town 
or  district  is  entitled,  (2)  the  general  qualifications  of  candidates 
for  election  to  either  house  (?),  (3)  the  regularity  of  elections 
of  members  to  either  house.  But  if  the  authority  of  precedent 
is  to  prevail,  there  are  several  necessary  quahfications  to  these 
rules.  (1)  Opinions  should  not  be  given  upon  questions  of 
fact  which  have  been  duly  determined  by  the  legislative  de- 
partment.^   In  extreme  cases  this  may  lead  to  a  dif&culty, 

*^  Questions  Submitted,  etc.  70  Me.  560;  Statement  and  Questions 
Submitted,  etc.  70  Me.  570;  Statement  and  Questions  Submitted,  etc. 
70  Me.  600. 

^  Opin.s  of  the  Justices,  18  Me.  458.  In  Opin.  of  the  Justices,  33  Me. 
587,  the  court,  assuming  the  facts  as  stated  in  the  inquiry,  passed  upon  the 
competence  (a  question  of  law)  of  an  earlier  legislature  to  enact  a  certain 
law. 


THE  ADVISORY  OPINION  IN  PRACTICE  103 

as  in  70  Maine,  570,  and  70  Maine,  600,  where  in  order  to  decide 
which  of  two  legislatures  was  lawful,  the  justices  had  to  decide 
which  of  two  statements  of  facts  was  correct.  (2)  An  opinion 
should  not  be  given  to  the  legislature  upon  a  matter  which 
rests  in  the  discretion  of  the  executive;  whether  action  has  been 
taken  or  not.^  These  two  exceptions  are  supported  by  good 
reasons  and  are  in  hne  with  principles  announced  in  advisory 
opinions  on  other  questions,  but  there  are  two  alleged  exceptions 
which  are  questionable.  (3)  In  95  Maine,  564,  a  majority 
(five)  of  the  justices  decHned  to  answer  a  question  of  law,  on 
the  ground  that,  the  legislature  having  already  adjourned,  the 
occasion  was  not  a  "  solemn  "  one  as  to  that  body,  and  an  opinion 
for  the  guidance  of  a  future  house  would  be  an  unwarrantable 
interference  with  its  right  to  be  judge  of  the  elections  and 
qualifications  of  its  members.  (4 )  The  refusal  in  122  Massa- 
chusetts, 600,  was  based  on  the  grounds  that  the  question 
involved  could  not  be  aJBFected  by  legislation,  and  might  come 
before  the  court  judicially.  The  reasoning  in  these  two  cases 
is  not  founded  upon  a  sound  theory  of  the  function  of  the  ad- 
visory opinion  or  a  fair  construction  of  the  constitutional  clause 
in  those  States.  Each  house  of  the  legislature  is  of  course  the 
final  judge  as  to  the  elections  and  qualifications  of  its  members, 
but  in  arriving  at  a  decision  it  is  entitled  to  the  advice  and 
assistance  of  the  justices  of  the  supreme  court  on  points  of  law. 
As  this  counsel  is  purely  advisory ,2^  it  is  difficult  to  see 
why  an  opinion  for  the  guidance  of  a  future  legislature  is  an 
intereference  with  any  of  its  rights.  As  the  minority  in  95 
Maine,  564,  point  out,  it  may  often  be  necessary  and  quite 

^Veto  Power — Special  Session  of  General  Assembly — 9  Colo,  642 
Opin.  of  the  Justices,  56  N.  H.  570;  Opin.  of  the  Justices,  56  N.  H.  574. 

"  The  justices  went  too  far  in  7  Me.  483,  when  they  said  the  decision 
and  proceedings  in  the  senate  "will,  of  course,  be  in  accordance  with  the 
constitution,  as  understood  and  construed  by  the  court  in  their  opinion 
deUvered  in  answer  to  your  questions,  in  connection  with  their  former 
opinion,  respecting  the  constitutionaUty  of  the  convention  and  its  pro- 
ceedings. " 


104     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

practical  to  obtain  opinions  beforehand  so  as  to  avoid  errors, 
and  opinions  have,  in  not  a  few  cases,  have  given  after  the 
adjournment  of  the  interrogating  legislature.^^  This  argument 
prevailed  in  103  Maine,  506,  where  all  the  justices  but  one^^ 
returned  opinions  to  questions  received  after  the  legislature 
adjourned.  As  to  (4')  supra,  the  reasons  given  for  refusal 
to  answer  seem  to  involve  incorrect  statements.  The  questions 
referred  might  well  be  affected  by  legislative  action,  as  a  con- 
stitutional amendment  touching  the  eligibility  of  the  justices 
mentioned  would  have  to  be  initiated  by  the  general  assembly .^^ 
Also,  the  question  as  to  eHgibility  could  scarcely  come  before 
the  court  judicially  if,  through  the  assistance  of  the  justices, 
the  house  of  representatives  should  once  pass  upon  it,  since 
this  decision  is  final. 

Among  the  twenty-nine  cases  on  the  composition  of  the 
legislature,  are  three  where  the  inquiry  came  from  the  executive 
department.28  AH  are  in  the  same  State,  and  are  so  unsatis- 
factory as  to  make  generalization  undesirable.  It  must  be 
admitted  that  the  justices  were  very  generous  in  their  answers 
on  these  occasions.  The  questions  in  70  Maine,  560,  all  have 
to  do  with  executive  duties  in  counting  the  votes  for  members 
of  the  legislature,  and  are  quite  within  the  advisory  opinion 
provision.  But  the  questions  in  the  other  two  opinions  seem 
to  concern  the  executive  department  very  little;  yet  all  were 
answered  save  two  which  could  only  be  decided  by  the  senate. 
These  last  cases  are  nearly  a  century  old  and  quite  possibly 
might  not  be  followed  at  the  present  time.  The  Canadian 
supreme  court  has  given  two  opinions  on  the  right  of  the  provin- 
ces to  representation  in  the  House  of  Commons.^^ 

^  See  list  in  Minority  Opinion  in  95  Me.  564. 
^  Three  were  the  minority  justices  of  95  Me.  564. 
*'  Const.  Amendment  IX. 

"  Opin.  of  Justices,  6  Me.  514;  Opin.  of  Justices,  7  Me.  483;  and  Ques- 
tions Submitted,  etc.  70  Me.  560. 

*'  In  the  matter  of  the  Representation  in  the  House  of  Commons,  etc. 


THE  ADVISORY  OPINION  IN  PRACTICE  105 

b.  Organization  and  Procedure.  There  are  but  three  in- 
stances of  questions  concerning  the  organization  of  a  legislative 
body.  The  first  is  a  case  of  unusual  difficulty,  which  is  unique 
in  the  reports  and  probably  could  not  arise  again.  An  extra- 
ordinary session  of  the  Florida  legislature,  summoned  in  1868 
for  a  particular  purpose,  started  impeachment  proceedings 
against  the  governor.  The  lieutenant-governor  claimed  to  act 
as  governor,  but  the  latter  kept  possession  of  the  executive 
offices  and  asked  the  supreme  court  whether  the  impeachment 
proceedings  were  valid,  alleging  {inter  at.)  the  lack  of  a  quorum 
in  the  senate.  The  justices  felt  bound  to  reply  (under  the  1868 
form  of  the  Florida  clause),  but  recognized  that  "to  answer  this 
communication  is,  therefore,  pro  tanto,  a  recognition  of  its  writer 
as  the  Constitutional  Governor  of  Florida — to  decline  to  answer 
it,  is  no  less  than  a  refusal  so  to  recognize."  However,  they 
avoided  passing  upon  the  competence  of  a  special  session  to 
impeach,  by  concluding  that  there  was  not  a  quorum  in  the 
senate.^^  Later  a  regular  session  treated  the  proceedings  of 
the  special  session  as  void.^^  The  other  two  cases  on  organiza- 
tion deal  with  the  speakership.  In  1891,  a  dispute  in  the  Colo- 
rado house  of  representatives  as  to  the  selection  of  standing 
committees^^  culminated  in  an  ouster  of  one  speaker  and  the 
election  of  another.  The  governor  promptly  asked  the  justices 
of  the  supreme  court  whether  a  speaker  could  be  summarily 
removed  in  that  way,  basing  his  right  to  an  answer  on  the 
necessity  of  communicating  with  the  presiding  officer  of  the 
house,  and  of  passing  upon  bills  with  his  signature.  The 
justices  hesitated  to  give  the  governor  an  opinion  upon  a  *' mat- 
ter   exclusively    pertaining    to    the    legislative    department," 


33  Can.  S.  C.  R.  475;  In  the  matter  of  the  Representation  of  Prince  Edward 
Island,  etc.,  33  Can.  S.  C.  R.  594. 

3°  In  the  matter  of  the  Executive  Commimication,  etc.,  12  Ra.  653. 

^^  Baldwin,  American  Judiciary,  p.  49. 

«SeeHJ.  1891,  15,  27,  114-115. 


106      DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

but  concluded  the  case  was  within  the  advisory  opinion  clause, 
and  declared  the  speaker  had  been  properly  removed.^^  It  is 
not  easy  to  reconcile  the  opinion  just  given  with  the  third  case.^ 
There  the  Heutenant-governor-elect  having  failed  to  qualify, 
his  predecessor  announced  his  intention  to  hold  office  until  a 
successor  should  be  elected.  The  senate  chose  a  presiding 
officer  pro  tempore,  and  then  asked  the  advice  of  the  supreme 
court  as  to  the  status  of  the  lieutenant-governor.  A  majority 
refused  to  answer  for  the  reason  that  it  would  "involve  a  deter- 
mination of  private  rights  in  an  ex  parte  proceeding,"  and 
observed  that  the  acts  of  the  lieutenant-governor  as  an  officer 
de  facto  would  unquestionably  be  vahd,  and  that  they  were 
not  authorized  *'to  answer  questions  propounded  to  the  end 
that  solemn  occasions  may  not  arise."  Of  course  the  first 
of  these  reasons  did  not  apply  to  15  Colorado  520,  but  why  would 
the  second  not  have  been  a  good  reply  to  the  governor?  Or 
why,  if  the  answer  in  15  Colorado,  520,  was  properly  given,  is 
not  the  dissenting  argument  of  Hill  and  Scott,  JJ.,  in  54  Colorado, 
166,  perfectly  good,  viz.,  the  necessity  of  knowing  whose  acts 
to  recognize  as  the  acts  of  the  legal  presiding  officer  made  the 
question  important  and  the  occasion  solemn,  and  that  it  was 
a  "question  of  grave  public  concern,  compared  with  which 
the  private  right  sinks  into  insignificance.  "^^ 

The  opinions  classified  as  relating  to  procedure  (thirty-two  in 
number)  are,  for  the  most  part,  upon  various  questions  relating 
to  the  passage  of  bills.^^     Five  of  them  have  to  do  with  the  time 

^  In  re  Speakership  of  the  House  of  Representatives,  15  Colo.  520. 

»*  In  re  Interrogatories  of  the  Senate,  54  Colo.  166. 

^  Cf.  the  Majority  Opinion  in  In  re  SR.  No.  10  Concerning  Governor- 
ship Contest,  33  Colo.  307,  which  was  ex  parte  as  far  as  the  supreme  court 
was   concerned. 

"  Except  Opin.  of  the  Court,  63  N.  H.,  625,  where  the  house  of  repre- 
sentatives inquired  as  to  the  operation  of  a  statute  providing  that  notice 
of  a  petition  to  the  legislature  might  be  submitted  before  the  beginning  of  a 
session;  and  Opin.  of  Justices,  18  R.  I.  824,  where  the  house  asked  a  question 
as  to  the  power  of  the  senate  to  adjourn  for  more  than  two  days. 


THE  ADVISORY  OPINION  IN  PRACTICE  107 

limit  imposed  upon  the  governor  in  his  consideration  of  bills 
submitted  for  approval.^^  Six  are  inquiries  as  to  the  majority 
necessary  for  action  upon  certain  kinds  of  bUls  or  clauses  or 
for  the  repassage  of  a  bill  over  the  governor's  veto.  In  three 
of  these  an  opinion  was  refused — not,  however,  because  of  the 
nature  of  the  question.  In  In  re  Construction  of  Constitution 
(3  S.  D.  548)  and  In  re  Opinion  of  the  Justices  (208  Mass.  614) 
the  court's  principal  objection  was  that  the  advice  was  not 
sought  for  the  benefit  of  the  body  making  the  interrogation. 
In  In  re  SB.  No.  416  (45  Colo.  394),  the  only  vaUd  objection 
adduced  was  that  the  constitutional  expiration  of  the  session 
in  three  days  did  not  permit  time  for  a  satisfactory  consideration 
of  the  question.^^  In  In  re  Bounties  to  Veterans  (186  Mass. 
603)  the  court  avoided  the  question  of  majority  by  declaring 
that  the  bill  was  unconstitutional  anyway.  In  the  two  re- 
maining cases  the  question  was  answered  without  hesitation.^® 
Then  there  are  fifteen  opinions  dealing  with  the  form  or  content 
of  proposed  legislation.  In  three,'*^  bills  are  disapproved  as 
unconstitutional,  because  not  passed  by  both  houses  in  the 
same  form.  The  nature  of  amendments  permitted  is  passed 
upon  in  three  cases.*^    In  In  re  General  Appropriation  Bill 

"  Opin.  of  Justices,  3  Mass.  567;  Opin.  of  Justices,  99  Mass.  636; 
Opin.  of  Justices,  135  Mass.  594;  Opin.,  45  N.  H.  607;  In  the  matter  of 
Senate  Resolution,  etc.,  9  Colo.  632. 

'*The  other  reason  given  in  this  case  that  legislation  was  no  longer 
pending  after  a  final  vote  in  both  houses  does  not  square  with  other  cases 
in  the  same  state.  Cf.  In  re  SR.  Relating  to  the  Recall  of  Bills,  etc.,  9 
Colo.  630;  In  the  matter  of  SR.,  etc.,  9  Colo.  632;  In  re  SR.  Relating  to  SB. 
No.  45,  etc.,  12  Colo.  339;  and  In  re  HR.  Relating  to  HB.  No.  218,  12  Colo. 
359.  Surely  legislation  is  not  completed  within  the  rule  of  In  the  matter 
of  the  ConstitutionaUty  of  SB.  No.  65,  12  Colo.  466,  and  In  re  HR.  No.  25, 
15  Colo.  602,  as  to  existing  statutes,  while  it  lacks  the  executive  signature 
or  may  be  duly  repassed  over  his  veto. 

» In  re  Em.ergency  Clause,  18  Colo.  291;  In  re  SR.  No.  9,  54  Colo.  429. 

"Judicial  Opin.,  35  N.  H.  579;  Opin.  of  the  Justices,  52  N.  H.,  622; 
In  re  Opin.  of  the  Justices,  76  N.  H.  601. 

"  In  the  matter  of  HB.  No.  231,  9  Colo.  624;  In  re  Amendments  of 
Legislative  BUls,  19  Colo.  356;  In  re  HB.  No.  250,  etc.,  26  Colo.  234. 


108      DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

(16  Colo.  539)  an  opinion  is  given  as  to  the  efifect  of  omitting 
an  emergency  clause,  and  in  In  re  Advisory  Opinion  (43  Fla. 
305),  an  opinion  as  to  the  absence  of  the  enacting  clause.  In 
In  the  matter  of  the  Executive  Communication  (14  Fla.  283) 
and  In  the  matter  of  the  Executive  Communication  (14  Fla. 
285),  the  governor  questioned  the  constitutionality  of  laws 
because  they  dealt  with  more  than  one  subject,  and  the  court 
agreed  with  him.  The  same  rule  is  the  occasion  for  an  opinion 
in  In  re  ConstitutionaHty  of  an  Act  (21  Colo.  46).  The  opinion 
of  In  re  Governor's  Proclamation  (19  Colo.  333)  covers  the 
scope  of  legislation  permitted  to  a  special  session.  The  ques- 
tions in  the  other  four  (in  one  of  which  the  opinion  is  extra- 
constitutional),^  relate  to  the  form  or  manner  of  submission 
of  initiated  and  referred  measures;  the  Colorado  court  refused 
to  answer  as  the  measures  had  already  been  adopted  by  the 
people.  Finally,  there  are  three  opinions  containing  questions 
of  a  miscellaneous  character — the  power  of  the  legislature  to 
recall  a  bill  from  the  governor,^  the  constitutionality  of  a  senate 
rule  on  readings,^  and  a  general  question  as  to  the  constitution- 
ahty  of  the  passage  of  a  certain  bill.^^ 

It  may  be  taken  as  settled  that  the  justices  will  (under  an 
advisory  opinion  clause  in  the  constitution)  give  their  opinions: 
(1)  To  the  legislature  on  questions  (a)  as  to  the  effect  of  the 
governor's  acts  or  omissions  regarding  bills  submitted  for  his 
approval,  at  least  when  there  is  doubt  as  to  the  necessity  for 
further  legislative  action;  (b)  as  to  whether  an  exceptional 
majority  is  required  for  certain  measures  or  clauses,  at  any  rate 
if  the  information  may  conceivably  be  of  use  in  connection 

«In  re  Opin.  of  Supreme  Court,  29  R.  I.  611;  In  re  HR.  No.  10,  50 
Colo.  71;  In  re  SR.  No.  4,  54  Colo.  262;  In  re  Senate  File  31,  25  Nebr.  864. 

"  In  re  SR.  Relating  to  the  Recall  of  Bills,  9  Colo.  630. 

**  In  the  matter  of  the  Constitutionality  of  Senate  Rule  No.  —  (sic), 
9  Colo.  641.  The  resolution  for  this  opinion  was  the  first  business  after  the 
governor's  message  in  the  legislature  of  1887 — SJ.  137,  159 — so  the  re- 
quest is  probably  the  first  one  made  under  the  advisory  opinion  amendment. 

« In  re  HR.  No.  30,  10  S.  D.  249. 


THE  ADVISORY  OPINION  IN  PRACTICE  109 

with  a  particular  bill;^  (c)  as  to  the  nature  of  amendments 
which  can  constitutionally  be  proposed  in  one  house  to  a  bill 
originating  in  the  other.  (2)  To  the  executive  department,  on 
questions  (a)  alleging  the  unconstitutionality  of  a  law  on  the 
ground  that  it  did  not  pass  both  houses  in  the  same  form;  (b) 
as  to  the  effect  of  the  absence  of  certain  clauses  of  a  procedural 
nature — ^in  either  case,  semble,  whether  the  information  is 
needed  in  the  exercise  of  the  veto  power,  or  in  carrying  out  the 
provisions  of  a  completed  enactment. 

Before  leaving  this  section,  it  might  be  worth  while  to  men- 
tion the  New  Jersey  statute,*^  which  makes  available  to  the 
executive  department  a  summary  method  of  securing  action 
by  the  supreme  court  upon  laws  which  are  possibly  void  because 
of  procedural  defects.  An  example  of  a  petition  under  this  act 
may  be  found  in  83  New  Jersey  Law,  303,  where  the  chief 
justice  declares  there  is  no  doubt  the  legislature  could  confer 
such  jurisdiction  on  the  supreme  tourt,  as  the  question  of  con- 
stitutionahty  is  always  a  judicial  one,  and  the  people  have  a 
right  to  know  "whether  a  given  law  which  appears  upon  the 
statute  books  is  one  which  they  are  obHgated  to  obey."** 

«  In  re  Opin.  of  the  Justices,  208  Mass.  614.  Perhaps  this  is  what  the 
court  meant  in  In  re  SB.  No.  416,  45  Colo.  394,  but  it  was  not  applicable 
to  that  case,  for  the  bill  there  might  easily  have  come  before  the  legislature 
again  upon  an  executive  veto. 

*''  "If,  at  any  time  wdthin  one  year  after  any  law  or  joint  resolution 
shall  have  been  filed  by  the  Secretary  of  State,  .  .  .  the  Governor  .  .  . 
shall  have  reason  to  beUeve  that  (it)  was  not  duly  passed  by  both  houses 
of  the  Legislature,  or  duly  approved  as  required  by  the  Constitution  of  this 
State,  he  may,  in  his  discretion,  direct  the  Attorney-General  to  present  a 
petition  to  the  Supreme  Court  of  this  State,  setting  forth  the  facts  and  cir- 
cumstances, and  prav-ing  that  the  said  law  or  joint  resolution  may  be  decreed 
to  be  null  and  void.  .  .  .  The  said  court  shall  have  jurisdiction  and  power 
to  proceed  in  a  summary  way  and  inquire  into  the  facts  and  circumstances 
alleged;  .  .  .  and  after  a  full  hearing  and  consideration,  .  .  .  may  dis- 
miss the  said  petition  ...  or  decree  (the  law  or  joint  resolution)  or  any 
part  thereof  to  be  null  and  void."     1873,  Comp.  Stat.  IV,  p.  4978. 

*•  This  reasoning  would  not  be  approved  by  the  Colorado  courts  which 
refuse  to  pass  upon  the  constitutionality  of  completed  legislation  except 
in  regular  cases  inter  partes.     See  p.  197  infra. 


110     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

c.  Financial  Powers  and  Duties  of  the  Legislature.  For  the 
sake  of  convenience,  cases  belonging  here  will  be  listed  under 
three  heads:  (i)  Taxation,  (ii)  Appropriations,  (iii)  Miscella- 
neous. The  number  in  each  class  is  relatively  large  and  the 
cases  are  among  the  most  important  that  the  courts  have 
dealt  with  in  this  extra-judicial  manner.  In  Colorado  particu- 
larly, the  history  of  pubhc  finance  would  be  decidedly  incomplete 
without  an  examination  of  the  advisory  opinions  connected 
with  that  subject.  In  all  the  States,  the  judges  have  shown  a 
tendency  to  generosity  in  answering  financial  questions,  and 
the  few  refusals  that  are  recorded  (twelve  out  of  a  total  of 
eighty-one  cases)  are  for  the  most  part  quite  reasonable  and 
not  because  of  the  subject  matter  of  the  question. 

(i)  Taxation.  Opinions  have  been  given  without  objection 
on  such  questions  as  the  power  of  the  legislature  to  tax  person- 
alty at  a  different  rate  from  realty ,^^  to  tax  shares,  stocks, 
credits  or  other  special  forms  of  personalty ,^°  to  tax  incomes 
generally ,^^  to  tax  inheritances,^^  ^q  ^ax  residents  on  land  ceded 
to  the  United  States  for  miUtary  purposes,^  to  tax  persons 
living  in  a  particular  locality  for  educational  purposes,^  to  tax 
sales  of  corporation  shares,^  to  tax  the  interest  from  securities 
and  exempt  the  securities,^^  to  levy  a  special  tax  for  road 
repairing,^^  to  tax  towns  excluded  temporarily  from  representa- 
tion,*^ to  tax  generally  under  a  school  fund  act,*^  to  impose  a 

"  In  re  Opin.  of  the  Justices,  195  Mass.  607;  In  re  Opin.  of  the  Jus- 
tices, 208  Mass.  616. 

'°In  re  Opin.  of  the  Justices.  In  re  Taxation,  220  Mass.  613;  In  re 
Opin.  of  the  Justices,  76  N.  H.  588. 

"  Opin.  of  the  Justices,  53  N.  H.  634. 

"  In  re  Inheritance  Tax,  HB.  No.  122,  23  Colo.  492. 

"  Opin.  of  Justices,  1  Mete.  580. 

"  Opin.  of  Justices,  5  Mete.  587. 

w  Opin.  of  the  Justices,  196  Mass.  603. 

"In  re  Opin.  of  the  Justices,  77  N.  H.  611. 

"  An  Opin.  Delivered  by  the  Court,  etc.,  4  N.  H.  565. 

"  Opin.s  of  the  Justices,  etc.,  18  Me.  458. 

6»  C^in.s  of  the  Justices,  etc.,  68  Me.  582. 


THE  ADVISORY  OPINION  IN  PRACTICE  111 

different  rate  of  taxation  upon  unincorporated  places  from  that 
applied  to  corporate,^^  to  lay  an  excise  tax  on  railroads,^^  to 
levy  a  deficiency  tax,^^  and  to  impose  a  tax  on  certain  lands 
at  the  end  of  a  period  of  constitutional  exemption.^  In  all 
these  cases^  the  legislature  was  the  source  of  interrogation. 
Similar  questions  met  with  refusals  in  four  instances.  A 
Connecticut  court  declined  to  advise  the  legislature  as  to  its 
power  to  tax  the  income  from  United  States  bonds,  on  the  con- 
stitutionally safe  basis  that  an  answer  would  involve  an  ex  parte 
adjudication  of  private  rights  which  the  judiciary  was  not 
authorized  to  make.^  The  refusal,  in  South  Dakota,^  to  deal 
extra- judicially  with  the  legislative  power  to  tax  interstate 
carriers,  after  the  United  States  circuit  court  of  appeals  had 
already  dealt  with  the  matter  in  regular  proceedings,  because 
the  occasion  could  scarcely  be  a  solemn  one  when  the  opinion 
would  be  so  inconclusive,  is  quite  reasonable,  if  it  is  once  ad- 
mitted that  the  justices  are  entitled  to  pass  upon  the  solemnity 
of  occasion s.^^  Perhaps  the  same  may  be  said  of  the  position 
of  the  Massachusetts  judges^^  that  the  mere  possibility  that 
legislation  may  be  introduced  upon  a  particular  subject  does 
not  make  the  occasion  of  a  question  thereupon  a  solemn  occasion 
within  the  meaning  of  the  advisory  opinion  clause.  But  it  is 
difficult  to  justify  the  refusal  of  In  re  Opinion  of  the  Justices 
(76  N.  H.  597).  There  the  justices  feebly  argue  that  since 
they  cannot  agree,  in  the  time  available,  upon  the  question  of 
gradation  involved  in  an  inheritance  tax  bill  submitted  to  them, 
"it  is  entu"ely  immaterial  to  which  side  of  the  question  the  major- 

«°  In  re  State  Taxation,  97  Me.  595. 

"  In  re  Railroad  Taxation,  102  Me.  527. 

"  In  re  Limitation  of  Taxation,  3  S.  D.  456. 

«3  In  the  matter  of  the  Constitutionality  of  HB.  No.  18,  etc.,  9  Colo.  623. 

"  Except,  of  course,  In  re  Limitation  of  Taxation,  3  S.  D.  456. 

"  Reply  of  the  Judges  of  the  Supreme  Court,  etc.,  ZZ  Conn.  586. 

"  In  re  Opin.  of  the  Judges,  34  S.  D.  650. 

"  See  pp.  161-77  inha. 

"  In  re  Opin.  of  the  Justicf^s,  217  Mass.  607. 


112     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

ity  may  incline."  This  can  be  a  valid  reason  for  declining 
an  answer  only  on  the  assumption  that  it  is  the  opinion  of  the 
court  as  a  whole  that  is  desired.  But  Article  73  of  Part  II 
in  the  Constitution  of  1902  says  "the  opinions  of  the  justices 
of  the  superior  court;"  and,  as  a  matter  of  fact,  although  in- 
dividual and  dissenting  opinions  are  not  as  common  in  New 
Hampshire  as  in  other  States,  they  are  by  no  means  unknown 
there.®^  Furthermore,  they  argue,  if  the  law  is  passed,  the 
question  of  constitutionality  will  be  litigated  before  the  court 
anyway,  and  the  justices  ought  not  to  be  hampered  by  pre- 
vious views.  If  this  argument  were  admitted  as  a  sufficient 
reason  for  a  refusal,  the  usefulness  of  the  advisory  opinion  in 
the  United  States  would  be  reduced  to  almost  nothing,  for  it 
would  apply  to  practically  all  questions  regarding  the  consti- 
tutionality of  pending  legislation.  If  it  had  been  applied  as 
a  test  during  the  past  century,  the  number  of  advisory  opinions 
in  our  reports  would  have  been  reduced  over  twenty-five  percent. 
The  advantage  of  obtaining  a  judicial  opinion  on  the  constitu- 
tionahty  of  a  measure  in  advance  of  its  enactment  is  recog- 
nized in  the  practice  of  all  the  States  where  the  legislature  may 
request  advisory  opinions,  including  New  Hampshire  itself.'^" 
It  would  have  been  much  better  had  the  judges  contented 
themselves  with  the  perfectly  satisfactory  answer  (which  was, 
apparently,  quite  consistent  with  the  facts)  that  the  time  per- 
mitted for  consideration  was  insufficient  to  admit  of  a  reply.  ^^ 
The  subject  matter  of  four  interrogatories  is  the  power  of 
a  legislature  to  exempt  certain  kinds  of  property  from  taxation 

«»See  Opin.  of  the  Justices,  etc.,  41  N.  H.  553;  Opin.,  45  N  H.  607; 
In  re  Opin.  of  Justices,  74  N.  H.  606;  and  recently  In  re  Opinion  of  the 
Justices,  77  N.  H.  611  (especially  the  opinion  of  Peaslee,  J.). 

'"An  Opin.  of  the  Justices,  etc.,  7  N.  H.  599;  Opin.  of  the  Justices, 
etc.,  25  N.  H.  537;  Opin.  of  Justices,  44  N.  H.  633;  Opin.  of  the  Justices, 
etc.,  45  N.  H.  595;  In  re  Opin.  of  the  Justices,  76  N.  H.  588;  In  re  Opinion 
of  the  Justices,  76  N.  H.  609;  In  re  Opin.  of  the  Justices,  77  N.  H.  611.  And 
see  pp.  154-158  infra, 

"  See  p.  219  infra. 


THE  ADVISORY  OPINION  IN  PRACTICE  113 

or  to  authorize  its  exemption/^  In  the  earliest  of  these  a  New 
Hampshire  court  was  again  compelled  to  decline  to  answer 
through  lack  of  time  for  examination,  and  unfortunately, 
again  tries  to  make  doubtful  excuses  do  the  work  of  sound 
reasons.  The  house  of  representatives  asked  whether  the  law 
authorizing  towns  to  exempt  manufacturing  property  from 
taxation  was  a  violation  of  the  bill  of  rights.  In  their  refusal, 
the  judges  argued  ingeniously  that  since  contracts  already 
made  under  the  law  were  vaHd  in  any  case  (previous  judicial 
construction  having  favored  constitutionaUty),  and  the  invalid- 
ity of  future  contracts  could  be  effected  by  repealing  the  law, 
a  judicial  opinion  as  to  its  true  construction  was  unnecessary. 
But  this  assumes  two  premises,  that  the  court  could  not  change 
its  mind  as  to  constitutionaUty  and  that  the  house  of  represen- 
tatives is  only  entitled  to  ask  opinions  on  points  which  the 
court  has  never  passed  upon.  It  is  submitted  that  these 
premises  are  not  conclusive.  The  court  may  be  unwilling  to 
overrule  a  regular  case  in  an  advisory  opinion,^  but  this  does 
not  do  away  with  the  obligation  to  tell  an  authorized  inquirer 
what  the  state  of  the  law  is,  whether  settled  or  not.  Suppose 
a  legislature  does  not  wish  to  repeal  a  statute  but  is  desirous 
of  amending  certain  clauses  if  they  are  unconstitutional,  is 
it  not  entitled  (under  an  advisory  opinion  provision)  to  know 
the  judicial  opinion  as  to  the  construction  of  those  clauses? 
Other  opinions  relating  to  taxation  cover  the  method  of  taxing 
certain  kinds  of  property,'^  the  necessity  of  imposing  a  tax  on 

"Opin.  of  the  Court,  58  N.  H.,  623;  In  re  Opin.  of  the  Justices,  76 
N.  H.  609;  In  re  Opin.  of  the  Justices,  77  N.  H.  611;  In  re  Construction  of 
Revenue  Law,  2  S.  D.  58. 

"In  re  Bounties  to  Veterans,  186  Mass.  603;  Opin.  of  the  Justices, 
196  Mass.  603;  In  re  Opin.  of  the  Justices.  In  re  Taxation,  220  Mass.  613; 
In  re  Opin.  of  the  Justices,  76  N.  H.  588;  In  re  House  Resolutions,  etc., 
15  Colo.  598;  In  re  Assessment  of  Property,  etc.,  25  Colo.  296;  and  many- 
other  cases. 

"  Taxation  of  National  Banks,  53  Me.  594;  In  the  matter  of  the  Con- 
stitutionality of  HB.  No.  270  and  SBB.  No.  69  and  No.  106,  etc.,  9  Colo. 
635  (mining  claims). 


114     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

property  at  the  close  of  a  period  of  constitutional  exemption/^ 
the  power  to  authorize  towns  to  lay  a  special  tax,^^  and  the 
power  to  sell  in  default  of  payment  of  taxes. ^^  The  last  two 
opinions  were  in  response  to  requests  from  the  governor. 

(ii)  Appropriations.  Quite  a  few  questions  deal  with  the 
power  to  appropriate  money  for  a  particular  purpose — for 
bounties  to  veterans  of  the  Civil  War/^  as  a  pension  to  a  de- 
ceased official's  widow/^  for  the  development  of  land  to  furnish 
homes  to  wage-earners,^^  in  aid  of  a  church  or  religious  society 
or  sectarian  school  or  other  undertaking,^^  for  old  age  pensions,^^ 
to  aid  unfinished  railroads  within  the  State,^  to  reimburse  coun- 
ty treasurers,  for  sums  paid  by  them  under  an  act  of  the  legis- 
lature,^ for  the  relief  of  destitute  farmers  after  years  of  severe 
drouth,^  to  cover  failure  by  counties  to  pay  the  expenses  of 

"  In  the  matter  of  House  Resolution,  etc.,  9  Colo.  622. 

7«  In  re  Abolishing  School  Districts,  27  R.  I.  598. 

''  Advisory  Constitutional  Opin.  of  the  Judges,  etc.,  37  Mo.  129. 

''^  In  re  Bounties  to  Veterans,  186  Mass.  603;  In  re  Opin.  of  the  Justices, 
190  Mass.  611;  In  re  Opin.  of  the  Justices,  211  Mass.  608.  In  the  first  of 
this  interesting  series,  the  justices  declared  the  appropriation  would  be 
unconstitutional,  not  being  for  public  purposes.  Again,  in  the  second,  the 
justices  felt  bound  to  adhere  to  the  settled  law  of  the  State  but  hinted  that 
an  appropriation  might  be  permitted,  to  recognize  the  valuable  services 
of  persons  serving  in  the  Civil  War,  to  be  paid  to  them  or  to  buy  medals, 
if  the  dignity  of  the  state  would  be  enhanced  or  patriotism  promoted  thereby. 
And  when  the  third  inquiry  alleged  that  the  purpose  of  the  appropriation 
was  to  "promote  patriotism"  and  the  public  good,  a  majority  of  the  jus- 
tices declared,  "We  are  bound  to  take  as  true  the  purposes  declared  in  the 
proposed  act  as  those,  and  those  only,  which  the  Legislature  had  in  view  in 
its  enactment;"  though  Rugg,  C.  J.,  insisted  that  the  assertion  of  a  patriotic 
purpose  did  not  change  the  essence  of  the  bill  at  all,  and  that  the  reasoning 
in  190  Massachusetts,  611,  should  apply. 
•     "  In  re  Opin.  of  the  Justices,  175  Mass.  599. 

8°  In  re  Opin.  of  the  Justices,  211  Mass.  624. 

"  In  re  Opin.  of  the  Justices,  214  Mass.  599. 

w  In  re  Opin.  of  the  Justices,  100  Ati.  49  (N.  H.). 

**  In  the  matter  of  the  Executive  Conmaunication,  13  Fla.  699. 

•*  In  re  Bounties,  18  Colo.  273. 

M  In  re  ReUef  Bills.  21  Colo.  62. 


THE  ADVISORY  OPINION  IN  PRACTICE  115 

girls  committed  to  the  State  Home  for  Girls,*  for  payment  of 
a  stenographer  in  the  attorney-general's  ofl&ce.®^  There  are 
four  Colorado  opinions^®  on  the  power  of  the  legislature  to  make 
appropriations  from  the  internal  improvement  fund.  Another 
Colorado  case^^  merits  special  attention  because  of  its  influence 
upon  the  financial  policy  of  the  State.  The  seventh  general 
assembly  heaped  up  appropriations  far  in  excess  of  the  revenue 
which  could  be  provided  under  the  constitution.  A  request 
from  Governor  Cooper  for  a  criterion  to  test  the  legaUty  of  any 
particular  appropriation,  eUcited  from  the  supreme  court  a 
clear  though  guarded  statement  of  the  general  principles  that 
should  govern  the  legislature  in  making  its  appropriations.  The 
judges  declared  that  the  excess  appropriations  were  absolutely 
void,  and  the  constitution  provided  no  method  of  reUef .  Appro- 
priations for  the  expenses  of  the  government  were  to  be  pre- 
ferred to  all  other  appropriations,  regardless  of  date  or  emergency 
clause,  but  questions  of  priority  among  other  appropriations 
would  have  to  be  determined  in  regular  judicial  proceedings. 
This  opinion  is  unquestionably  the  constitutional  law  of  Colo- 
rado. In  his  message  to  the  next  legislature.  Governor  Cooper 
called  their  attention  to  the  fact  that  there  were  appropriations 
on  the  statute  books  which  were  not  available  and  asked  for 
their  repeal.^^    jjig  successor.  Gov.  Routt,  declared  $600,000 

» In  re  Constitutionality  of  SB.  No.  196,  23  Colo.  508. 

"  In  re  Appropriations  for  Deputies,  etc.,  25  Nebr,  662. 

^8  In  re  Senate  Resolution  Relating  to  Internal  Improvement  Fimd, 
12  Colo.  285;  In  re  Senate  Resolution  Relating  to  Appropriation,  etc.,  12 
Colo.  287;  In  re  Internal  Improvements,  18  Colo.  317;  and  In  re  Internal 
Improvement  Fund,  24  Colo.  247. 

*'  In  re  Appropriations  by  General  Assembly,  13  Colo.  316. 

'°"  After  the  decision  of  the  supreme  court,  in  answer  to  questions 
submitted  to  them  from  my  oflSce,  in  September,  1889,  the  officers  of  State 
were  compelled  to  declare  certain  appropriations  made  by  the  Seventh 
General  Assembly  unavailable.  Thus,  there  stand  upon  our  statute  books 
certain  acts  authorizing  expenditures  of  money  for  purposes,  more  or  less 
desirable,  but  with  no  fimd  available  to  carry  out  the  acts.  ...  I  recom- 
mend the  repeal  of  all  acts  of  appropriation  authorizing  the  expenditure  of 


116      DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

of  state  warrants  had  been  taken  up  by  the  school  fund  (sup- 
posedly inviolate!)  and  other  investment  funds,  and  asked 
that  the  warrants  be  validated  and  provision  made  for  their 
payment  from  surplus  revenue.^^  Appropriations  by  the  next 
assembly  were  within  the  constitutional  limit,^^  ^nd  in  1895, 
Hayt,  C.  J.,  could  say^^  that  excess  appropriations  had  gradually 
decreased  since  the  opinion  we  are  considering.  However, 
the  twelfth  general  assembly  enacted  excess  appropriations 
to  the  extent  of  nearly  $500,000,  and  Governor  Thomas  reminded 
the  next  assembly  that  they  were  void  according  to  the  opinion 
of  the  supreme  court. ^  Governor  Peabody  also  accepted  the 
opinion  as  final,  in  1903.^^ 

Answers  have  been  given,  too,  to  questions  as  to  the  power 
of  the  governor  to  recommend  appropriation  items, ^^  the  power 

moneys  beyond  the  estimated  revenues  of  the  State.  In  fact,  in  this  line, 
I  urge  the  repeal  of  all  laws  for  appropriations  not  absolutely  necessary 
for  the  government  of  State  affairs  and  the  advancement  of  the  interest 
of  the  people."     SJ.  1891,  p.  58. 

w  See  SJ.  1891,  pp.  103-4. 

92  See  Gov.  Routt's  Message  of  January  7,  1893,  SJ.,  pp.  46-7,  and  Gov. 
Waite's  Inaugural,  ibid.,  p.   131. 

83  "These  cases  .  .  .  are  a  part  of  the  litigation  which  springs  from 
the  custom  of  the  legislature,  at  each  biennial  session,  to  appropriate  money 
in  excess  of  the  revenues  of  the  state,  in  violation  of  express  constitutional 
mandates.  .  .  .  This  practice  .  .  .  has  led  to  expensive  and  vexatious 
litigation,  to  the  impairment  of  the  credit  of  the  state,  resulting  not  infre- 
quently in  the  deprivation  of  some  of  our  most  deserving  institutions  of 
funds  absolutely  necessary.  ...  To  the  credit  of  the  legislature,  be  it 
said,  however,  that  such  unconstitutional  appropriations  have  gradually 
decreased  in  amount  during  the  six  years  that  have  elapsed  since  the  first 
opinion  of  this  court  was  rendered  upon  the  subject,  which  is  entitled  In  re 
Appropriations,  13  Colo.  316.  .  .  .  The  leading  opinion  in  this  state  in 
reference  to  the  subject  was  written  in  the  case  in  13  Colo,  already  referred 
to.  .  .  .  These  principles  have  been  followed  and  approved  in  a  number  of 
cases. "     Parks  v.  Soldiers'  and  Sailors'  Home,  22  Colo.  86,  at  p.  90. 

MSJ.  1901,  p.  21. 

^  HJ.  1903,  p.  102. 

^  In  re  Opin.  of  the  Justices,  208  Mass.  610. 


THE  ADVISORY  OPINION  IN  PRACTICE  117 

of  the  legislature  to  make  comptroller's  warrants  or  treasurer's 
certificates  receivable  for  State  dues,®^  the  power  of  the  legisla- 
ture to  appropriate  from  assessed  but  not  yet  collected  reve- 
nues,^^  the  necessity  for  specific  appropriations  where  continuing 
appropriations  have  been  provided  for,^^  and  as  to  the  nature 
of  an  appropriation  for  a  Tax  Commission.^'^*^ 

There  are  three  refusals  to  record.  A  Florida  court  de- 
clined to  answer  a  question  from  the  governor  as  to  his  obUga- 
tion  to  deed  certain  land  to  a  town  and  sign  a  warrant  in  its 
favor  under  an  act  of  the  legislature,  on  the  ground  that  the 
question  did  not  involve  executive  rights  or  duties  under  the 
constitution.^^^  In  the  second  case,^*^  a  Colorado  governor 
asked  the  court  its  opinion  as  to  the  priority  of  legislative 
appropriations,  and  the  court  quite  reasonably  pointed  out 
that,  since  a  test  case  was  then  pending  in  a  district  court, 
private  interests  were  involved  and  the  ex  parte  enunciation 
of  any  general  rule  would  be  undesirable.^^  Finally  the  supreme 
court  of  the  same  State  has  refused  to  give  an  opinion  as  to  the 
constitutionality  of  possible  appropriations  for  a  bureau  of 
child  and  animal  protection,  because  the  inquiry  was  not  con- 
nected with  pending  legislation  and  involved  the  construction 
of  existing  statutes.^^ 

(iii)  Miscellaneous.  The  cases  relegated  to  this  subdivision 
cover  quite  a  variety  of  matters — legislative  power  to  remit 
tolls  which  were  partial  security  for  a  bond  issue,^^  to  impose 
upon  a  city  a  debt  greater  than  it  could  constitutionally  as- 

"  In  the  matter  of  the  Executive  Communication,  etc.,  14  Fla.  283. 

»•  In  re  State  Warrants,  6  S.  D.  518. 

"In  re  Continuing  Appropriations,  18  Colo.  192. 

'°°In  re  Questions  of  the  Governor,  55  Colo.  17. 

'°i  Advisory  Opinion  to  Governor,  50  Fla.  169. 

•"In  re  Priority  oE  Legislative  Appropriations,  19  Colo.  58. 

^^  Cf.  In  re  Appropriations  by  General  Assembly,  13  Colo.  316. 

lo*  In  re  Interrogatories  of  the  House,  162  Pac.  1144  (Colo.). 

1*  In  re  Opin.  of  the  Jusdces,  190  Mass.  605. 


118     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

sume/^  to  assume  the  bounty  debts  of  cities  and  towns/"^  to 
authorize  a  board  of  pubhc  works  to  spend  city  funds  upon 
improvements/^^  to  control  the  deposit  of  State  funds/°^  to 
authorize  a  loan  from  the  school  fund/^^  to  determine  damages 
caused  to  private  property  by  the  State."^  In  eight  instances 
the  questions  relate  to  the  power  of  the  legislature  to  authorize 
a  bond  issue  for  certain  purposes,^^  or  the  making  of  municipal 
loans  to  assist  private  enterprises,^'  or  the  issuance  of  warrants 
of  indebtedness.^^*  One  stray  question  calls  for  a  definition 
of  the  fiscal  year.^^^  Three  interesting  opinions  have  to  do 
with  the  relative  position  of  the  two  houses  in  financial  matters — 
the  power  of  the  senate  to  determine  the  proportion  of  ratable 
property  in  towns,^^^  to  originate  appropriations/^^  and  to 
originate  appropriations  or  bills  authorizing  exemption  from 
taxation."^  Two  Colorado  cases  deal  with  the  power  of  the 
legislature  to  apportion  the  debts  of  old  counties  when  new 
counties  are  created  therefrom."®  A  Missouri  court  informed 
the  governor  that  an  act  of  the  legislature  releasing  a  first  Hen 
of  the  State  upon  a  particular  railroad  was  constitutional,^^ 
but  seven  years  later  a  differently  constituted  court  refused 

^«»  In  re  Opin.  of  the  Justices,  99  Me.  515. 

^"  Opin.  of  the  Justices,  53  Me.  587. 

108  In  re  SB.  Providing  for  a  Board  of  Public  Works,  etc.,  12  Colo.  188. 

io»  In  re  HR.  Relating  to  HB.  No.  349,  12  Colo.  395. 

»°  In  re  Loan  of  School  Fund,  18  Colo.  195. 

"1  In  re  Constitutionahty  of  Substitute  for  SB.  No.  83,  21  Colo.  69. 

1"  In  re  State  Bonds,  81  Me.  602;  In  re  Opin.  of  the  Justices,  34  R.  I. 
191;  In  re  HB.  No.  165,  15  Colo.  593,  595;  In  re  Casual  Deficiency,  21  Colo. 
403;  In  re  State  Bonds,  7  S.  D.  42;  In  re  House  Roll  284,  31  Nebr.  505. 

"3  Opin.  of  the  Justices,  58  Me.  590. 

»"  In  re  Canal  Certificates,  19  Colo.  63. 

"» In  re  HR.  No.  25.  15  Colo.  602. 

"•  Opin.  of  the  Justices,  126  Mass.  547. 

"'  Opin.  of  the  Justices,  126  Mass.  557. 

"*  C^in.  of  the  Justices,  70  N.  H.  642. 

"»In  the  matter  of  HB.  No.  231,  9  Colo.  624;  In  the  matter  of  the 
Constitutionality  of  Section  9  of  HB.  No.  122,  9  Colo.  639. 

120  Advisory  Constitutional  Opin.  of  the  Judges,  etc.,  37  Mo.  139. 


THE  ADVISORY  OPINION  IN  PRACTICE  119 

the  senate  an  answer  to  the  same  question  (though  relating 
to  a  different  act),  for  the  reason  that  "the  matters  referred 
to  concern  the  property  rights  of  the  State  and  the  vested 
rights  of  individuals  and  corporations,  and  are  such  as  are 
liable  at  any  time  to  be  brought  before  the  courts  in  real  con- 
troversies for  adjudication."^^  Practically  the  same  court 
declined,  the  following  year,  to  give  an  opinion  to  the  house 
of  representatives  upon  a  bill  giving  a  raihoad  more  time  to 
repay  a  loan  from  the  State,  for  the  same  reason.^  Finally 
there  are  two  refusals  in  Colorado,  besides  the  one  noted  above 
(In  re  Priority  of  Legislative  Appropriations,  19  Colo.  58). 
In  In  re  University  Fund,  18  Colorado,  398,  the  senate  asked 
whether  the  general  assembly  could  constitutionally  create 
a  University  Land  Permanent  Fund  from  certain  sources  or 
give  the  Board  of  Regents  exclusive  control  of  certain  proceeds 
from  sales  of  land,  and  the  court  decUned  to  answer  because 
the  question  involved  the  constitutionality  of  existing  sta- 
tutes,^ though  it  went  on  to  say  that  the  provisions  of  the 
bill  submitted  did  not  seem  to  contravene  any  clause  of  the 
constitution.  And  In  In  re  Assessment  of  Property  by  the 
State  Board  of  Equahzation,  25  Colorado  296,  the  governor  asked 
{inter  alia)  whether  the  legislature  could  constitutionally 
authorize  a  board  of  equalization  to  assess  railroads,  and  the 
court  felt  "constrained  to  withhold"  any  opinion,  for  the  very 
good  reason,  that  a  case  involving  the  same  subject  matter 
was  at  that  time  before  the  court. 

Summary.  There  is  such  unanimity  on  the  part  of  the 
courts  in  dealing  with  questions  concerning  the  financial  powers 
and  duties  of  the  legislature,  that  generaUzation  can  be  quite 
succinct.     Such  questions  are,  it  would  seem,  ex  sua  naturae 

^21  In  the  matter  of  the  N.  Mo.  R.  R.,  51  Mo.  586. 
^  Opin.  of  the  Court  in  Response  to  the  Resolution  of  the  General 
Assembly,  etc.,  55  Mo.  497. 

^"  For  the  validity  of  this  rule  see  pp.  193-202  infra. 


120     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

"important  questions,"  and  will  be  answered  unhesitatingly, 
whether  put  by  the  legislature  itself  or  by  the  governor.  As 
a  matter  of  course,  the  subject  matter  is,  in  most  cases,  questions 
of  taxation  or  appropriation,  but  there  is  a  sufficient  diversity 
in  the  twenty-two  miscellaneous  cases  reviewed  (where  answers 
were  given)  to  indicate  that  all  questions  of  a  financial  nature 
will  be  favorably  received,  and,  unless  they  fall  within  the  rea- 
sons for  disapproval  pointed  out  in  a  later  chapter,^24  readily 
answered. 

d.  Police  Power  of  the  Legislature.  There  has  been  no  at- 
tempt to  bring  within  this  section  all  the  cases  where  questions 
were  raised  which  involved  the  police  power.  For  instance, 
some  of  the  questions  in  the  section  on  Labor^^  might  have  been 
listed  here,  had  it  not  seemed  preferable  to  let  subject  matter 
rather  than  juridical  aspect  determine  their  classification.  So 
only  the  police  power  cases  of  a  nondescript  character  having 
little  in  common  with  the  other  sections  of  this  chapter  will 
be  found  here.  They  are  few  in  number  and  so  dissimilar 
inter  se  as  to  discourage  any  eflFort  at  generalization.  It  may 
be  observed,  however,  that  there  are  but  two  refusals  to  answer 
out  of  fifteen  cases,  and  only  one  of  them  because  of  the  inherent 
nature  of  the  inquiry. 

The  opinions  given  treat  of  the  power  of  the  legislature  to 
regulate  patents  and  the  rights  of  patentees,^^^  to  exclude  girls 
from  Chinese  restaurants,^^^  to  prohibit  gift  enterprises,^^^  to 
control  the  sale  of  convict  goods,^^^  to  control  price  discrimina- 
tions in  restraint  of  trade,  and  monopolies,^^^  to  enact  anti- 

»"  See  pp.  161-237  infra. 
»26See  pp.  123-125  infra. 
^^  In  re  Opin.  of  the  Justices,  193  Mass.  605. 
1"  In  re  Opin.  of  the  Justices,  207  Mass.  601. 

"8  In  re  Opin.  of  the  Justices,  208  Mass.  607;  In  re  Opin.  of  the  Justices, 
115  N.  E.  978   (Mass). 

"9  In  re  Opin.  of  the  Justices,  211  Mass.  605. 
"°  In  re  Opin.  of  the  Justices,  211  Mass.  620. 


THE  ADVISORY  OPINION  IN  PRACTICE  121 

saloon  laws,*^^  to  standardize  fire  insurance  policies/^  and  to 
regulate  the  weighing  of  coal.^^  In  four  instances  there  are 
opinions  upon  the  power  to  authorize  cities  to  manufacture 
gas  and  electricity/^  run  fuel  yards  for  the  benefit  of  their 
citizens/^  or  establish  municipal  factories.^^^  One  refusal  was 
occasioned  by  a  request  from  the  New  Hampshire  governor 
as  to  the  power  of  the  legislature  to  amend  corporation  charters 
by  increasing  the  number  of  trustees.^^^  Essentially  this  called 
for  an  opinion  on  the  constitutionality  of  the  well-known  act 
amending  the  Dartmouth  College  charter,  which  had  been  passed 
five  months  earher,  and  the  judges  not  unreasonably  objected 
to  deaUng  extra- judicially  with  private  rights  which  had  already 
accrued  and  would  in  all  Hkelihood  come  before  them  judi- 
cially.^^^  But  in  the  other  instance  where  an  opinion  was 
refused,^^^  no  private  rights  had  as  yet  come  into  existence, 
for  it  appears  from  the  discussion  by  the  court  that  the  bill 
(to  increase  the  capital  stock  of  a  corporation,  enlarge  its  powers, 
etc.)  was  then  pending  in  the  legislature.  The  judges  were 
altogether  too  narrow  in  their  construction  of  the  advisory 
opinion  clause,^'*^  and  the  case  should  not  be  looked  upon  as 
estabUshing  a  precedent.^*^ 

^31  Opin.  of  the  Justices,  etc.,  25  N.  H.  537. 

132  In  re  Opin.  of  Justices,  97  Me.  590. 

'^  In  re  HB.  No.  10,  etc.,  15  Colo.  600. 

»»*In  re  Public  Lighting,  150  Mass.  592. 

I'^Opin.  of  the  Justices.  In  re  HB.  No.  519,  155  Mass.  598;  In  re 
Municipal  Fuel  Plants,  182  Mass.  605. 

»3«  0pm.  of  the  Justices,  58  Me.  590. 

1"  Opin.  of  the  Court,  62  N.  H.  704. 

1**  As  to  the  vaUdity  of  such  an  excuse  see  pp.  181-202  infra. 

""Advisory  Constitutional  Opin.  of  the  Judges,  etc.,  37  Mo.  135. 

"0  See  pp.  44-46  supra  and  pp.  181-202  infra. 

"1  A  resolution  was  adopted  in  the  Senate  of  Minnesota  in  1863  (SJ. 
1863,  p.  54)  asking  the  supreme  court  if  the  legislature  could  by  special 
act  create  private  corporations  or  confer  certain  special  privileges  upon 
individuals.  There  is  no  record  of  a  reply  in  the  journal  or  in  the  supreme 
court  reports  for  1863. 


122      DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

It  might  be  added  that  the  Canadian  supreme  court  has  on 
five  occasions  given  opinions  on  questions  involving  the  pohce 
power — In  re  Provincial  Jurisdiction  to  Pass  Prohibitory  Liquor 
Laws  (24  Can.  S.  C.  R.  170),  In  the  matter  of  the  Jurisdiction 
of  a  Province  to  Legislate  Respecting  Abstention  from  Labor 
on  Sunday  (35  Can.  S.  C.  R.  581),  In  re  International  and 
Inter-provincial  Ferries  (36  Can.  S.  C.  R.  206),  In  re  References 
by  the  Governor-General  in  Council  (43  Can.  S.  C.  R.  536), 
and  In  the  matter  of  Jurisdiction  over  Provincial  Fisheries 
(26  Can.  S.  C.  R.  444). 

e.  Eminent  Domain.  Only  eight  opinions  where  the  right 
of  eminent  domain  was  involved  have  come  to  light.  All  but 
one  are  due  to  interrogatories  from  the  legislature.  In  the  light 
of  advisory  opinion  theory,  they  are  of  Httle  interest.  They 
include  questions  as  to  the  power  of  a  legislature  to  authorize 
a  city  to  take  land  for  broadening  streets  or  for  warehouse 
sites,^^  to  authorize  a  city  to  build  bridges  across  streets,  mak- 
ing compensation  to  abutting  owners,^*^  to  authorize  a  commis- 
sion to  obtain  and  develop  land  for  workingmen's  homes,^** 
to  regulate  the  destruction  of  forests  by  owners  in  the  public 
interest,^^^  to  authorize  a  commission  to  obtain  land  for  public 
parks,^^^  and  to  compel  street  improvements  at  the  expense  of 
abutting  owners.^*^ 

f.  Education.  Ten  opinions  (including  one  that  is  extra- 
constitutional)  have  to  do  with  matters  touching  education 
or  the  educational  system.    They  are  even  more  barren  of 

^*2  In  re  Opin.  of  the  Justices,  204  Mass.  607;  In  re  Opin.  of  the  Justices, 
204  Mass.  616. 

I*' In  re  Opin.  of  the  Justices,  208  Mass.  603;  In  re  Opin.  of  Justices 
to  Senate,  208  Mass.  625. 

"*In  re  Opin.  of  the  Justices,  211  Mass.  624. 

^«  In  re  Opin.  of  the  Justices,  103  Me.  506. 

J«  In  re  Opin.  of  the  Justices,  34  R.  I.  191. 

"^  In  re  House  Resolutions  Concerning  Street  Improvements,  15  Colo. 
598. 


THE  ADVISORY  OPINION  IN  PRACTICE  123 

theoretical  interest  than  those  in  the  preceding  section,  but 
are  Hsted  for  the  sake  of  completeness.  Four  were  prompted 
by  executive  inquiries.  The  questions  answered  are  as  follows: 
the  right  of  residents  on  land  ceded  to' the  United  States  for 
miUtary  purposes  to  use  the  common  schools  of  the  State,"^ 
the  meaning  of  school  district  in  a  certain  appropriation  act,^'^® 
the  Hability  of  school  districts  abohshed  by  law  for  previous 
debts,^^°  the  power  to  change  the  location  of  educational  in- 
stitutions or  to  consoUdate  them,^^  the  power  of  the  legislature 
to  authorize  loans  from  the  Permanent  School  Fund,^^^  the 
power  to  estabhsh  kindergartens  in  the  public  school  system,^ 
the  power  to  consoUdate  school  districts/^  the  tenure  of  school 
boards/^^  and  the  power  of  the  executive  to  invest  the  permanent 
school  fund.^^  The  refusal  in  In  re  University  Fund,  18  Colorado 
398,  to  advise  upon  the  power  of  the  legislature  to  give  univer- 
sity regents  the  exclusive  control  of  certain  funds,  was  based 
upon  the  famihar  excuse^"  that  the  question  involved  the 
construction  of  existing  statutes. 

g.  Labor.  The  eleven  cases  which  fall  within  the  scope  of 
this  heading  come  from  only  two  States,  Massachusetts  and 
Colorado.  Nine  of  the  references  fell  upon  good  soil,  five  in 
Massachusetts:  the  power  to  compel  weekly  payment  of  wages 
generally,^^^  to  establish  an  eight  hour  day  for  pubUcemployees,^^^ 

"8  0pin.  of  the  Justices,  1  Mete.  580. 
"9  In  re  Opin.  of  the  Justices,  75  N.  H.  622. 
«o  In  re  Abolishing  School  Districts,  27  R.  I.  598. 
^"  In  the  matter  of  Senate  Resolutions,  etc.,  9  Colo.  626. 
«2  In  re  Loan  of  School  Fund,  18  Colo.  195. 
^"  In  re  Kindergarten  Schools,  18  Colo.  234. 

"*  In  re  Annexation  and  ConsoUdation  of  School  Districts,  SB,  No. 
9,  26  Colo.  136. 

i«  In  re  Construction  of  School  Law,  Ch.  9.  s.  7,  2.  S.  D.  71. 

»« In  re  School  Fund,  15  Nebr.  684. 

'"  See  pp.  193-202  infra. 

«8  In  re  HB.  No.  1230,  163  Mass.  589. 

"9  In  re  0pm.  of  Justices,  208  Mass.  619. 


124     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

to  enact  a  pending  workmen's  compensation  act,^^''  to  exempt 
labor  unions  and  the  members  thereof  from  certain  tortious 
liability /^^  and  to  limit  the  right  of  railroads  to  discharge  em- 
ployees ;^^^  and  four  in  Colorado :  the  power  to  enact  a  compulsory 
arbitration  law/^  to  interfere  with  the  freedom  to  contract  for 
wages,^^  to  estabUsh  an  eight  hour  day  for  certain  classes  of 
laborers/®^  and  to  aboUsh  the  use  of  scrip  in  the  payment  of 
wages.^^^  But  two  of  the  judges  in  the  latter  State,  Campbell 
and  Goddard,  JJ.,  felt  they  had  gone  too  far  under  the  leader- 
ship of  Hayt,  C.  J.,  and  refused  point  blank  to  answer  questions 
in  no  essential  respect  dissimilar  to  those  which  have  just  been 
mentioned — i.e.  as  to  the  constitutional  authority  of  the  legislature 
to  aboHsh  payment  of  laborers  in  anything  but  lawful  money 
of  the  United  States.^"  These  questions,  they  said,  were  not 
important  questions  publici  juris  and  so  came  within  the  rule 
of  12  Colorado,  466;  furthermore  answers  might  affect  private 
rights  if  the  bill  should  be  enacted  into  law.  They  admitted 
a  departure  from  these  tests  in  In  re  Bill — to  Abolish  the  Use 
of  Scrip,  23  Colorado,  504,  and  in  another  case,  but  condemned 
the  course  there  followed.  Although  a  consideration  of  the  va- 
lidity of  these  excuses  may  better  be  deferred  (see  pp.  182-205 
infra),  it  may  be  said  at  this  place  that  if  they  had  been  appHed 
strictly  in  Massachusetts  and  Colorado,  the  eleven  opinions  of 
this  section  would  all  be  labeled  refusals,  and  scores  of  other 
cases  as  well. 

The  Canadian  reports  disclose  three  opinions  of  the  supreme 
court  in  cases  involving  labor  questions:  Union  Colhery  Com- 

160  In  re  Opm.  of  Justices,  209  Mass.  607. 

"1  In  re  Opin.  of  the  Justices,  211  Mass.  618. 

"2  In  re  Opin.  of  the  Justices,  220  Mass.  627. 

163  In  the  matter  of  a  Bill  for  an  Act,  etc.,  9  Colo.  629. 

"^  In  re  HB.  No.  203,  21  Colo.  27. 

i««  In  re  a  Bill  Providing  that  Eight  Hours  Shall  Constitute  a  Day's 
Labor,  21  Colo.  29. 

i6«  In  re  Bill— to  AboUsh  the  Use  of  Scrip,  etc.,  23  Colo.  504. 

1"  In  re  HB.  No.  99,  etc.,  26  Colo.  140;  and  In  re  SB.  No.  27,  etc.,  28 
Colo.  359. 


THE  ADVISORY  OPINION  IN  PRACTICE  125 

I>any  of  British  Columbia  v.  Attorney-General  of  British 
Columbia,  et  al,  27  Can.  S.  C.  R.  637,  (an  appeal  from  a  refer- 
ence to  the  supreme  court  of  British  Columbia  regarding  the 
Coal  Mines  Regulation  Act),  In  the  matter  of  the  Jurisdiction 
of  a  Province  to  Legislate  Respecting  Abstention  from  Labor 
on  Sunday,  35  Can.  S.  C.  R.  581,  and  In  re  Railway  Act  Amend- 
ment 1904,  36  Can.  S.  C.  R.  136,  (the  power  to  regiilate  the 
liability  of  railroads  for  injuries  to  employees). 

h.  Miscellaneous  Questions  as  to  Legislative  Power.  It  has 
been  found  necessary  to  refer  thirty-eight  cases  to  this  hetero- 
geneous group,  as  not  coming  under  any  of  the  preceding  sec- 
tions. Three  of  these  are  extra-constitutional  cases  from 
Maine,  New  York  and  Ohio.  The  reaction  of  the  judges  has 
been  favorable  with  respect  to  the  following  questions:  the 
power  of  the  legislature  to  fill  vacancies  in  the  executive  coun- 
cil,^^^  to  commute  punishments  after  sentence  has  been  given,^^* 
to  exempt  certain  classes  from  militia  service,^^^  to  make  certain 
classes  eligible  to  enroll  in  the  miHtia,^^^  to  change  town  or  county 
lines,^^  to  abohsh  the  probate  and  insolvency  register  and  give 
his  duties  to  another  officer,^^^  to  create  a  civil  service  com- 
mission with  certain  powers,^^'*  to  authorize  the  estabHshment 
of  new  ward  lines  before  a  particular  census,^^^  to  authorize  the 
appointment    of    women    as    notaries    public,^^^    to    change 

^•*Opin.  of  the  Justices,  14  Mass.  470. 

i"Opm.  of  the  Justices,  14  Mass.  472. 

i^oOpin.  of  the  Justices,  22  Pick.  571. 

"^  Opin.  of  the  Justices,  14  Gray,  614. 

^"  Opin.  of  the  Justices,  6  Cush.  578;  and  In  the  matter  of  the  Executive 
Communication,   etc.,    14   Fla.   320. 

"3  Opin.  of  the  Justices,  117  Mass.  603. 

"*  Opin.  of  the  Justices,  138  Mass.  601. 

"*Opin.  of  the  Justices,   157   Mass.  595. 

"« In  re  Opin.  of  the  Justices,  165  Mass.  599;  In  re  Opin.  of  the  Justices, 
99  Atl.  999  (N.H.);Opin.s  of  the  Justices,  etc.,  62  Me.  596  (question  re 
appointment  of  women  as  justices  of  the  peace) ;  and  In  the  matter  of  HB. 
No.  166,  9  Colo.  628. 


126     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

the  census  date  within  an  appointed  year,^^'  to  authorize  a 
guardian  to  convey  the  realty  of  his  ward,^^^  to  provide  for 
recording  deeds  with  town  clerks,"^  to  elect  a  United  States 
Senator  for  a  particular  term,^^°  to  direct  insane  asylum  trustees 
to  convey  land  to  the  State/^^  to  grant  divorces/^^  to  pass  the 
so-called  "Personal  Liberty  Laws/'^^  to  annul  a  judgment  of 
the  supreme  court,^^  to  call  a  constitutional  convention  or  sub- 
mit to  the  people  the  question  of  its  desirabihty/^  to  order  a 
new  election  in  case  of  failure  to  elect  a  United  States  repre- 
sentative/^^ to  consolidate  municipaUties,^"  to  decide  contests 
for  the  governorship,^^^  or  for  any  executive  office/^^  to  provide 
a  special  apportionment  of  delegates  for  a  constitutional  con- 
vention ;^^°  and  the  duty  of  the  legislature  to  provide  for  a 
census.^^^  In  1878  several  towns  asked  the  State  of  Maine 
for  the  repayment  of  certain  sums  paid  out  by  them  as  bounties; 
a  resolution  was  introduced  in  the  legislature  in  favor  of  the 
towns,  and  finally  the  whole  matter  was  referred  to  three  justi- 
ces of  the  supreme  court,  as  a  commission,  to  determine  questions 
of  law  and  fact.  The  justices  obUgingly  complied  with  the 
request.^^^ 

^"  In  re  Opin.  of  the  Justices.    In  re  Census,  220  Mass.  609. 
"8  An  Opin.  Delivered  by  the  Court,  etc.,  4  N.  H.  565. 
1"  An  Opin.  of  the  Justices,  etc.,  7  N.  H.  599. 

180  Opin.  of  the  Court,  60  N.  H.  585. 

181  Opin.  of  Justices,  70  N.  H.  638. 

182  Opin.  of  the  Justices,  16  Me.  479. 

183  Opin.s  of  the  Justices,  etc.,  46  Me.  561. 

184  Opin.  of  the  Supreme  Court,  3  R.  I.  299. 

18*  In  re  the  Constitutional  Convention,  14  R.  I.  649. 
186  In  re  the  Congressional  Election,  15  R.  I.  624. 
18^  In  re  Extension  of  Boundaries  of  the  City  of  Denver,  18  Colo.  288; 
and  In  re  ConstitutionaUty  of  SB.  No.  293,  21  Colo.  38. 
188  In  re  Senate  Resolution  No.  10,  etc.,  33  Colo.  307. 
i8»  In  re  Quaere  of  the  Procedure  of  the  Two  Houses,  etc.,  31  Nebr.  262. 
i^oDeb.  Mass.   Conv.   1853,  I,   138. 
i»iln  re  State  Census,  6  S.  D.  540. 
i«2  Opin.s  of  the  Justices,  etc.,  69  Me.  585. 


THE  ADVISORY  OPINION  IN  PRACTICE  127 

On  the  other  hand  opinions  have  been  refused  outright  in 
six  cases.  When  the  governor  of  Florida  asked  for  advice  as 
to  the  general  scope  of  legislation  permitted  to  the  current 
session  of  the  legislature,  that  he  might  know  what  bills  could 
properly  be  submitted  for  his  approval,  he  was  promptly  told 
that  the  exercise  of  the  veto  was  not  an  executive  but  a  legis- 
lative act  and  therefore  his  question  did  not  come  within  the 
advisory  opinion  clause  of  the  constitution. ^^^  Four  times  the 
Colorado  justices  have  declined  to  answer,  when  references 
were  made  relating  to  the  general  construction  of  constitutional 
clauses  on  irrigation  and  the  power  of  the  legislature  thereun- 
der,^^ the  constitutionality  of  a  pending  act,^^^  the  constitu- 
tionaUty  of  a  bill  submitting  an  amendment,^^  and  the  power  to 
repeal  a  law  submitting  an  amendment.^^^  In  all  of  these  cases 
the  justices  objected  that  the  questions  as  put  were  too  general — 
an  objection  well  within  the  practice  in  this  State.^^^  In  the 
first  of  these  they  also  quite  properly  called  attention  to  the 
fact  that  cases  involving  these  questions  were  then  awaiting 
adjudication;  and  in  the  last  two  they  reiterated  another  conamon 
Colorado  rule,  that  advice  will  not  be  given  to  the  assembly  on 
pending  legislation  "unless,  among  other  things,  it  is  shown  that 
the  same  has  at  least  passed  the  committee  of  the  whole.  "^•' 
In  the  Ohio  case  (a  question  of  legislative  power  over  munici- 
palities) the  court  rested  its  refusal  upon  the  want  of  constitu- 
tional authority  to  give  extra-judicial  advice.^^"  In  two  in- 
stances, answers  to  some  of  the  questions  submitted  (upon  the 
power  of  the  legislature  to  appoint  oflScers  otherwise  than  as 

^'^  In  re  Executive  Communication,  etc.,  23  Fla,  297. 
*^  In  the  matter  of  Senate  Resolution  on  the  Subject  of  Irrigation,  9 
Colo.  620. 

i»  In  re  HB.  No.  107,  21  Colo.  32. 

^'•In  re  HB.  No.  495,  etc.,  26  Colo.  182. 

"'  In  re  SR.  No.  7,  29  Colo.  350. 

"«See  pp.  215-17  infra. 

1"  In  re  SR.  No.  7,  29  Colo.  350.    And  see  pp.  212  infra. 

200  State  V.  Baughman,  38  Ohio  St.,  455. 


128     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

provided  in  the  constitution,^^^  and  upon  the  vaUdity  of  certain 
impeachment  proceedings^^^),  were  made  unnecessary  by  the 
repUes  to  previous  questions  in  the  same  reference.^^^ 

2.  The  Executive  Department 

a.  Composition  and  Organization.  In  nearly  half  of  the 
twenty-seven  cases  classed  here,  the  subject  matter  is  the  tenure 
of  office  of  members  of  the  executive  department — of  the  exe- 
cutive council,^^^  commissioners  of  pilots,^^^  the  adjutant  gen- 
eral,^^  certain  officers  of  the  miUtia,^^^  the  register  of  probate,^^^ 
the  register  of  deeds,^^^  the  governor  and  other  officers,^^^  cer- 
tain appointed  officers,^^^  county  treasurers,^^  and  the  board  of 
capitol  commissioners.^^^  Seven  deal  with  eUgibiHty — to  ap- 
pointment on  a  railroad  commission,^^^  or  as  land  agent  ;^^^  of 
miUtia  officers  to  hold  a  second  office,^^^  of  members  of  a  Seces- 
sion convention  to  hold  any  State  office,^^^  and  of  women  to 
serve  as  notaries  public.^^^  The  other  questions  are  miscel- 
laneous in  character:  the  method  of  election  of  the  executive 

201  Opin.  of  the  Justices,  136  Mass.  578. 

^^  In  the  matter  of  the  Executive  Conununication,  etc.,  12  Fla.  653. 

2«  There  is  a  Canadian  case  dealing  with  the  power  of  the  legislature 
to  pass  a  law  relating  to  bigamy.  In  the  matter  of  the  Criminal  Code,  etc., 
27  Can.  S.  C.  R.  461. 

2M  Opin.  of  the  Justices,  3  Gray,  601. 

2<»  Opin.  of  the  Justices,  154  Mass.  603. 

2°"  In  re  Opin.  of  the  Justices,  216  Mass.  605. 

207  Opin.  of  the  Justices,  62  N.  H.  706;  Opin.  of  the  Justices,  2  Me.  439. 

208  Opin.  of  the  Justices,  etc.,  61  Me.  601. 

209  Opin.  of  the  Justices,  etc.,  64  Me.  596. 

210  Statement  and  Questions  Submitted,  etc.,  70  Me.  570. 

211  In  the  matter  of  the  Executive  Communication,  etc.,  14  Fla.  277. 

212  In  the  matter  of  HB.  No.  38,  etc.,  9  Colo.  631. 

213  In  re  Board  of  Capitol  Commissioners,  18  Colo.  220. 
21*  In  re  Opin.  of  the  Justices,  75  N.  H.  613. 

215  Opin.  of  the  Justices,  3  Me.  481. 

216  Opin.  of  the  Judges,  etc.,  4  R.  I.  585. 

217  In  the  matter  of  the  Executive  Communication,  etc.,  12  Fla.  651. 
2i«In  re  Opin.  of  the  Justices,  165  Mass.  599;  Opin.s  of  the  Justices, 

etc.,  62  Me.  596;  and  In  the  matter  of  HB.  No.  166,  9  Colo.  628. 


THE  ADVISORY  OPINION  IN  PRACTICE  129 

council,^*  the  successor  to  the  duties  of  sheriff  upon  the  latter's 
death ,^°  the  necessity  for  the  cooperation  of  the  governor  and 
council  in  approving  an  appointment  by  hospital  trustees,^^ 
the  successor  to  the  acting  governorship  when  the  president  of 
the  senate  ceases  to  act  at  the  end  of  a  political  year,^^^  the 
procedure  in  governorship  contests,^  or  in  contests  for  any 
executive  oflSce.^  On  the  other  hand,  there  have  been  two 
refusals  to  answer  inquiries  concerning  the  tenure  of  various 
oflScials — certain  appointees  of  the  governor,'^  and  the  regents 
of  education.^  In  both  cases  the  courts  advanced  the  excuse 
that  any  reply  would  compel  an  ex  parte  examination  of  private 
rights.  However  reasonable  this  excuse  may  be,  an  examina- 
tion of  the  above  cases  on  tenure  will  show  that  it  has  not 
controlled  the  earlier  practice  in  Massachusetts,  New  Hamp- 
shire, Maine,  Florida,  or  Colorado  itself.  Again,  in  a  quite 
recent  case,  the  Massachusetts  court  declined  to  answer  ques- 
tions concerning  the  general  relations  of  the  governor  and  coun- 
cil in  that  state,^^  on  the  ground  that,  as  it  did  not  appear 
that  assistance  was  necessary  in  the  performance  of  a  pending 
duty,  the  question  was  not  an  "important  question"  within 
the  constitution.^* 

b.  Financial    Administration.    Twenty-seven    opinions    in 
all  have  to  do  with  the  financial  powers  and  duties  of  the  gover- 
nor or  some  other  executive  officer.    In  eight  instances  answers 
were  given  to  questions  as  to  the  administration  of  appropria- 
tes Opin.  of  the  Justices,  3  Gray,  601. 
22°Opm.  of  the  Justices,  126  Mass.  603. 

221  In  re  Opin.  of  the  Justices,  211  Mass.  632. 

222  0pin.  of  the  Justices,  6  Me.  506. 

«3  In  re  SR.  No.  10,  etc.,  33  Colo.  307. 

22*  In  re  Quaere  of  the  Procedure  of  the  Two  Houses,  etc.,  31  Nebr.  262. 

225  In  re  Appointments  by  the  Governor,  etc.,  21  Colo.  14. 

22«  In  re  Ch.  6,  Session  Laws  of  1890,  8  S.  D.  274. 

227  In  re  Opin.  of  the  Justices,  211  Mass.  630. 

228  In  re  Opin.  of  the  Justices,  211  Mass.  632,  is  the  sequel  to  this  refusal. 


130     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

tions  in  general,^^  or  of  appropriations  or  funds  for  some  special 
purpose — a  special  school  fund,^^  the  appropriation  for  the 
maintenance  of  indigent  persons,^^  the  appropriation  for  the 
salary  or  mileage  of  members  of  the  legislature,^^  and  the 
general  school  fund.^^^  Five  are  concerned  with  the  issuing 
or  payment  of  bonds,  warrants  or  certificates  of  indebtedness,^ 
and  two  with  the  operation  of  a  defective  appropriation  bill.^^ 
Advice  was  also  given  upon  six  questions  of  a  miscellaneous 
nature — the  power  of  the  governor  to  suggest  appropriation 
items  to  the  legislature,^^  or  to  pledge  the  State's  credit,^^ 
his  duties  in  administering  lotteries,^^  the  liability  of  the  trea- 
surer for  State  funds,^^  and  the  power  of  the  board  of  equaliza- 
tion to  levy  special  taxes,^^  or  to  make  original  assessments.^^ 
Six  refusals  must  be  recorded.  Three  are  in  Florida,  where 
the  court  applied  its  prohibition  against  the  construction  of 
statutes  to  questions  upon  the  governor's  powers  and  duties 
in  administering  certain  special  appropriations,^  or  the  school 

229  Opin.  of  the  Justices,  13  Allen,  593;  In  re  Appropriations  by  General 
Assembly,    13    Colo.    316. 

230  In  re  Opin.  of  the  Justices,  75  N.  H.  622. 

23iOpin.s  of  the  Judges,  etc.,  4  R.  I.,  587;  Opin.s  of  the  Judges,  etc., 
4  R.  I.  588. 

232  In  re  Opin.  to  Governor,  35  R.  I.  166;  In  the  matter  of  the  Executive 
Commimication,  etc.,  12  Fla.  689. 

233  In  re  School  Fund,  15  Nebr.  684. 

23<  Opin.  of  the  Court,  etc.,  49  Mo.  216;  In  re  Certificates  of  Indebted- 
ness, 18  Colo.  566;  In  re  Contracting  of  State  Debt  by  Loan,  21  Colo.  399; 
In  re  State  Warrants,  6  S.  D.  518;  and  In  re  State  Bonds,  7  S.  D.  42. 

236  In  re  Advisory  Opinion,  43  Fla.  305;  and  In  re  General  Appropriation 
Bill,  16  Colo.  539. 

23«  In  re  Opin.  of  the  Justices,  208  Mass.  610. 

237  In  re  Opin.  of  the  Justices,  76  N.  H.  601. 

238  Opm.  of  the  Justices,  7  Me.  502. 

239  In  re  HR.  Relating  to  HB.  No.  349,  12  Colo.  395. 
2*0  In  re  State  Board  of  Equalization,  24  Colo.  446. 
2*1  In  re  Questions  of  the  Governor,  55  Colo.  17. 
2*2  In  re  Opin.  of  Justices,  54  Fla.  136. 


THE  ADVISORY  OPINION  IN  PRACTICE  131 

fund,^  and  in  countersigning  warrants  for  State  printing.^** 
The  three  Colorado  refusals  are  referable  to  the  same  excuse 
although  the  wording  is  somewhat  different,  the  fact  being 
emphasized  that  it  would  involve  an  ex  parte  determination 
of  private  rights  to  answer  certain  inquiries  put  concerning 
the  salary  and  powers  of  the  State  treasurer,^  the  duties  of 
the  governor  and  auditor  in  administering  appropriations  when 
questions  of  priority  were  raised,^  and  the  powers  of  the 
auditor  and  board  of  equalization  over  assessments.^^ 

c.  Appointment  and  Removal  Powers  of  Executive  Officers, 
Most  of  the  thirty-four  cases^'*^  placed  here  deal  with  the  ap- 
pointive power  of  the  governor:  does  it  extend  to  the  selection 
of  particular  officials — the  commissioners  of  pilots,^^  certain 
county  officers,^"  the  census  superintendent,^^  a  committee  of 
investigation,^  an  unnamed  State  official,^^  the  board  of  pubUc 
works,^  a  justice  of  the  supreme  court,^  the  matron  of  the 
insane  hospital;^  or  the  filUng  of  particular  vacancies — in  the 
United  States  house  of  representatives,^^  on  the  railroad  com- 
mission or  board  of  agriculture,^^  among  county  officers  gen- 

2«  In  re  Opin.  of  Judges,  62  Fla.  4. 

2**  In  re  Advisory  Opin.  to  the  Governor,  64  Fla.  1. 

2«  In  re  HR.  No.  25,  15  Colo.  602. 

""  In  re  Priority  of  Legislative  Appropriations,  19  Colo.  58. 

2*7  In  re  Assessment  of  Property,  etc.,  25  Colo.  296. 

2<*This  includes  two  that  are  extra-constitutional. 

2*8  Opin.  of  the  Justices,  154  Mass.  603. 

2*0  Statement  of  Facts,  and  Questions,  38  Me.  597. 

2*1  In  re  the  Census  Superintendent,  15  R.  I.  614. 

2*2  In  re  the  Investigating  Commission,  16  R.  I.  751. 

2*3  In  re  Advisory  Opin.  to  the  Governor,  65  Ha.  434. 

2**  In  re  SB.  Providing  for  a  Board  of  Public  Works,  etc.,  12  Colo.  188. 

2**  In  re  Supreme  Court  Vacanc>',  4  S.  D.  532. 

2*«In  re  Board  of  Pubhc  Lands  and  Buildings,  18  Nebr.  340. 

2*7  In  re  the  Representation  Vacancy,   15  R.  I.  621. 

2*8  In  re  Raikoad  Commissioner,  28  R.  I.  602. 


132     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

erally,^^^  or  in  the  court  of  appeals  ;2^°  does  it  authorize  the 
appointment  of  women  as  notaries  pubUc,^®^  or  on  the  board 
of  health,  lunacy  and  charity ,^^2  or  as  county  treasurer  ;2^  or 
the  preferment  of  Civil  War  veterans  in  civil  service  appoint- 
ments,^^  or  the  appointment  of  members  of  the  legislature  to 
the  boards  of  State  institutions?^^  Except  two  which  deal 
with  the  power  of  appointment  in  general,^^  the  other  opinions 
on  appointment  have  to  do  with  miscellaneous  questions:  the 
governor's  power  to  fill  vacancies  on  a  corporation,^^^  his  right 
to  appoint  the  first  incumbent  of  an  office  when  the  legislature 
fails  to  elect,2^^  the  method  of  filUng  vacancies  to  which  the 
governor  has  failed  to  appoint,^^^  the  need  of  the  senate's  con- 
firmation of  certain  appointments,^^^  and  the  governor's  duty 
to  submit  temporary  appointments  to  a  special  session  of  the 
legislature.^^^  Interrogations  connected  with  the  power  of 
suspension  or  removal  are  much  fewer.  Two  are  general  in 
nature,^^  three  are  concerned  with  particular  ofl&cials — county 

259  Vacancies  in  Elective  County  Officers,  25  Fla.  426. 

2«oOpin.  of  the  Judges  of  the  Court  of  Appeals,  79  Ky.  621. 

2"  Opin.  of  the  Justices,  etc.,  150  Mass.  586;  and  In  re  Opin.  of  the 
Justices,  73  N.  H.  621. 

^i^Opin.  of  the  Justices,    136  Mass.   578. 

2MIn  re  Opin.  of  Judges,  62  Fla.   1. 

2"  Opin.  of  the  Justices,  etc.,  145  Mass.  587;  Opin.  of  the  Justices, 
166  Mass.  589. 

2«*  In  re  Members  of  Legislature,  49  Fla.  269. 

2w  Opin.  of  the  Justices,  3  Gray,  601 ;  and  In  re  Opin.  of  Justices,  67 
Fla.  423. 

2«7  0pin.  of  the  Court,  62  N.  H.  704. 

2«8  0pm.  of  the  Justices,  etc.,  45  N.  H.  590. 

2«»  In  re  Decision  of  Justices,  etc.,  28  R.  I.  607. 

*'°In  re  Advisory  Opinion  to  the  Governor,  45  Fla.  154;  and  In  re 
Question  Propounded  by  the  Governor,  12  Colo.  399. 

"^  In  re  Advisory  Opin.  to  the  Governor,  64  Fla.  16. 

2"  Opin.  of  the  Justices,  3  Gray,  601;  and  Question  Submitted,  etc., 
72  Me.  542. 


THE  ADVISORY  OPINION  IN  PRACTICE  133 

cominissioners,^^  circuit  judges,^^*  and  the  fire  and  excise  com- 
missioners of  a  city.^^^ 

There  are  four  refusals.  In  Opinion  of  the  Justices,  62 
New  Hampshire,  706,  an  inquiry  from  the  mayor  and  aldermen 
of  a  city  as  to  the  location  of  the  power  to  appoint  and  remove 
members  of  the  fire  department  met  with  the  fate  that  should 
have  been  anticipated.  Twice  a  Florida  court  declined  to  ex- 
press any  opinion  as  to  the  governor's  power  to  appoint  circuit 
judges,  because  it  would  necessitate  the  interpretation  of  a 
statute  ;2^^  and  in  Question  Submitted  by  the  Governor,  etc., 
85  Maine  545,  the  justices  declared  that  the  possible  removal  of 
a  county  attorney  did  not  create  a  "solemn  occasion"  calling 
for  their  advice. 

One  of  the  Canadian  opinions  is  in  reply  to  a  reference 
concerning  the  power  of  a  provincial  Heutenant-govemor  to 
appoint  Queen's  Coimsel  or  grant  precedence  to  selected  mem- 
bers of  the  bar  .2^^ 

d.  Electoral  Duties.  Of  the  seventeen  interrogations  re- 
lating to  the  duties  of  the  executive  in  connection  with  elections, 
nine  belong  to  the  State  of  Maine.  All  of  these  deal  with  the 
extent  of  the  governor's  duties  in  canvassing  the  returns  from 
an  election  for  county  officers,^^^  or  from  general  elections.^^^ 
Similar  questions  are  answered  in  Opinion  of  the  Justices,  53  New 

"'  In  re  Advisory  Opin.  to  Governor,  64  Fla.  168, 

27«Opin.  of  the  Justices,  67  Fla.  489. 

2"  In  re  Fire  and  Excise  Commissioners,  19  Colo.  482. 

"« In  re  Opin,  of  the  Justices,  69  Fla.  632;  and  In  re  Opin.  of  the  Justices, 
etc.,  69  Fla,  653, 

^'^  Attorney-General  for  Dominion  v.  Attorney-General  for  Ontario, 
(1898)  A.  C.  247. 

"'Opin.  of  the  Justices,  etc.,  25  Me.  567;  Statement  of  Facts,  and 
Questions,  38  Me,  597;  and  Opin.  of  the  Justices,  54  Me.  602. 

2"  Opin.s  of  the  Justices,  etc.,  64  Me.  588;  Opin.s  of  the  Justices,  etc., 
64  Me.  596;  Opin.s  of  the  Justices,  etc.,  68  Me.  587;  Questions  Submitted, 
etc.,  70  Me.  560;  Statement  and  Questions  Submitted,  etc.,  70  Me.  570; 
and  Statement  and  Questions  Submitted,  etc.,  70  Me,  600, 


134     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

Hampshire,  640,  and  Opinion  of  the  Court,  58  New  Hampshire, 
621,  but  the  same  court  twice  refused  to  give  to  the  legislature 
opinions  as  to  the  power  of  the  governor  to  reject  certain  votes, 
when  the  rejection  was  a  fait  accompli?^^  The  other  four 
questions  were  all  answered;  they  deal  with  the  duty  or  power  of 
the  governor  to  recount  ballots  in  a  contested  election,^^!  the 
powers  of  the  secretary  of  state  in  counting  the  signatures  on  a 
referendum  petition ,2^^  and  the  duty  of  the  governor  to  order  a 
new  election  upon  failure  to  elect  a  United  States  representative.^^^ 

e.  Military  Questions.  The  subject  matter  of  five  inter- 
rogatories is  the  constitutional  powers  of  the  commander-in- 
chief  of  the  State's  public  armed  forces  (to  determine  the  exis- 
tence of  an  exigency  calling  for  the  use  of  the  miUtia  in  the 
federal  service,^^  or  to  disband  companies  of  militia,^^  or  to 
determine  the  rank  of  militia  officers^^),  or  the  position  and 
powers  of  subordinate  mihtia  officers  (when  the  mihtia  is  in 
the  service  of  the  United  States,^^^  or  in  administering  an  oath 
to  the  judge  advocate  of  a  court  martialj^^s  or  as  to  tenure 
generally ,2^^  or  when  an  appHcation  for  a  court  martial  has 
been  made^^o).  it  will  be  seen  that  four  of  these  five  cases 
are  from  Massachusetts  and  only  one  of  the  five  is  of  later  date 
than  1860.    There  are  no  refusals. 

^soOpin.  of  the  Justices,  56  N.  H.  570;  and  Opin.  of  the  Justices,  56 
N.  H.  574. 

2"  Opin.  of  the  Justices,  117  Mass.  599;  and  Opin.  of  the  Justices,  136 
Mass.  583. 

282  In  re  Opin.  of  the  Justices,  etc.,  114  Me.,  557. 

283  In  re  the  Congressional  Election,  15  R.  I.  624. 
2W0pin.  of  the  Justices,  8  Mass.   548. 

285  Opin.  of  the  Justices,  1  Allen,  197  n. 
28«Opin.  of  the  Judges,  etc.,  5  R.  I.  598. 

287  Opin.  of  the  Justices,  8  Mass.  548. 

288  Opin.  of  the  Justices,  3   Cush.   586. 

289  Opin.  of  the  Justices,   132  Mass.   600. 

290  Opin.  of  the  Judges,  etc.,  5  R.  I.  598. 


THE  ADVISORY  OPDaON  IN  PRACTICE  135 

f.  The  Execution  of  the  Criminal  Law.  If  we  include  the 
seven  Oklahoma  cases  under  the  capital  conviction  statute'^^^ 
and  three  other  extra-constitutional  opinions,  we  find  twenty- 
three  opinions  dealing  primarily  with  questions  of  the  criminal 
law.  Seven  of  these  treat  of  the  executive  powers  of  pardon, 
commutation  and  reprieve — the  legal  effect  of  the  trial  judge's 
recommendation  for  a  commutation,^^  the  need  for  the  executive 
council  to  approve  a  pardon  or  commutation,^^^  the  power  of 
the  governor  and  council  to  consider  an  appHcation  for  pardon,^^ 
whether  the  executive's  pardon  can  restore  voting  privileges,^®^ 
the  executive  power  to  grant  reprieves,^^  and  the  duty  of  the 
governor  to  communicate  pardons  and  commutations  to  a  spe- 
cial session  of  the  legislature.^^^  Three  deal  with  extradition 
problems — the  right  of  the  governor  to  surrender  a  convict 
under  sentence,  upon  a  request  for  extradition,^^^  his  duty  to 
grant  extradition  under  a  United  States  statu te,^^^  or  upon  the 
mere  request  of  a  foreign  state.^°^  The  supreme  court  justices 
have  also  assisted  extra-judicially  in  the  consideration  of  ques- 
tions as  to  the  power  of  the  governor  to  order  the  removal  from 
one  county  to  another  of  a  convict  under  death  sentence,^*'^ 
the  power  of  a  prison  warden  to  discharge  a  prisoner  without 
the   executive  pardon,^*^  and   the   nature   of   commutation.^''' 

=91  See  pp.  76-78  supra. 
292  0pin.  of  the  Justices,    120  Mass.  600. 

-^  In  re  Opin.  of  the  Justices,  190  Mass.  616;  and  In  re  Opin.  of  the 
Justices,  210  Mass.  609. 

***  In  re  Pardoning  Power  of  Governor  and  Council,  85  Me.  547. 

295  Opin.s  of  the  Judges,  etc.,  4  R.  I.  583. 

296  In  re  Advisory  Opinion  to  Governor,  62  Fla.  7. 

297  In  re  Advisory  Opinion  to  the  Governor,  64  Fla.  21. 

298  In  re  Opinion  of  the  Justices,  etc.,  201  Mass.  609. 

299  In  the  matter  of  Hughes,  61  N.  C.  57. 

300  Respublica  v.  De  Longchamps,  1  Dall.  (Pa.)  HI. 

301  Opin.  of  the  Justices,  11  Cush.  604. 

302  Opin.  of  the  Justices,  13  Gray,  618. 

303  In  re  Opin.  of  the  Justices,  210  Mass.  609. 


136  DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

In  State  v.  Cleveland^^  the  justices  very  reluctantly  gave  to 
the  executive  council  their  opinions  as  to  whether  a  jury  found 
a  defendant  guilty  of  murder  in  the  first  degree  according  to 
the  statutes  of  the  State.  The  statutory  opinions  in  cases 
of  conviction  on  a  capital  charge  number  eight — one  in  New 
York,^°^  seven  in  Oklahoma.^^^  As  has  already  been  noted,^^^ 
two  of  the  referred  cases  in  Oklahoma  met  with  refusals,  and 
the  construction  of  the  statute  in  In  re  Opinion  of  the  Judges 
(8  Okla.  Crim.  467)  has  undoubtedly  limited  its  appHcation  to 
a  considerable  extent.  Two  other  refusals  should  be  mentioned. 
In  In  re  Opinion  of  Supreme  Court,  39  Florida,  397,  the  justices 
declined  to  tell  the  governor  what  the  effect  of  pardons  without 
the  executive  approval  would  be,  because  this  did  not  involve 
an  interpretation  of  the  executive  powers,  or  whether  he  had 
power  to  issue  a  death  warrant,  because  this  did  involve  the 
construction  of  a  statute.  A  Colorado  court  has  appHed  this 
last  excuse  to  a  question  as  to  the  relation  of  the  pardoning 
power  to  the  paroling  of  prisoners.^^^ 

g.  Miscellaneous.  As  in  the  case  of  the  legislature,  so 
here  with  the  executive  department,  it  has  been  found  necessary 
to  make  a  hodge-podge  of  opinions,  for  the  most  part  unrelated 
and  unclassifiable.  Not  a  few  (nine)  deal  with  the  powers  and 
duties  of  various  minor  officials — of  all  civil  and  military  officers 
under  a  particular  Act  of  Congress,^*'^  of  the  president  of  the 
senate  when  acting  governor,^^^  of  jailers  and  other  persons  in 

3^58  Me.  564. 

3**  People   V.    Green,    1    Denio   614. 

'<*  State  V.  Johnson,  21  Okla.  40;  In  re  Opin.  of  the  Judges,  25  Okla. 
76;  Opin.  of  the  Judges,  3  Okla.  Crim.  315;  In  re  Opin.  of  the  Judges,  4  Okla. 
Crim.  594;  In  re  Opin.  of  the  Judges,  6  Okla.  Crim.  18;  In  re  Opin.  of  Judges, 
6  Okla.  Crim.  210;  and  In  re  Opin.  of  the  Judges,  8  Okla.  Crim.  467. 

307  See  pp.  77-78  supra. 

3°*In  re  Penitentiary  Commissioners,   19   Colo.  409. 

309  Opin.  of  the  Justices,  14  Gray,  614. 

310  Opin.  of  the  Justices,  7  Me.  483. 


THE  ADVISORY  OPINION  IN  PRACTICE  137 

dealing  with  fugitive  slaves,^^  in  advising  a  city  board  of  police 
commissioners,^^  of  the  board  of  land  commissioners,^^  of 
the  auditor  of  pubUc  accounts,^^"*  of  the  attorney-general  in 
appointing  deputies,^^  and  of  the  board  of  public  lands  and 
buildings  as  regards  State  institutions.^^®  Particular  powers 
or  duties  of  the  governor  are  the  subject  matter  of  eight  opin- 
ions— the  power  to  hire  legal  agents  to  prosecute  a  military  claim 
against  the  United  States,^^^  the  duty  to  arrange  for  the  trans- 
portation of  State  officials,^^^  the  power,  in  the  absence  of 
statute,  to  authorize  legal  proceedings  at  the  expense  of  the 
State,^^*  or  to  alter  highways  at  the  expense  of  certain  towns,^° 
the  power  to  adjourn  the  legislature,^^  or  to  summon  it  in  special 
session,^  the  duty  to  issue  commissions.^  Finally  there  are 
opinions  as  to  the  UabiHty  of  a  county  commissioner  to  impeach- 
ment,^ the  title  of  asylum  trustees  in  asylum  property ,^^  the 
need  of  approval  by  the  governor  and  council  of  appointments 
by  a  license  board,^  the  existence  of  laws  prohibiting  racetrack 
gambling,^^  the  effect  of  the  suspension  of  a  governor  while 

'"  Opin.s  of  the  Justices,  etc.,  46  Me.  561. 

31'  In  re  Police  Commissioners,  22  R.  I.  654. 

3"  In  re  Leasing  of  State  Lands,  18  Colo.  359;  and  In  re  Canal  Cer- 
tificates, 19  Colo.  63. 

"«In  re  Babcock,  21  Nebr.  500. 

'"  In  re  Appropriations  for  Deputies,  etc.,  25  Nebr.  662. 

'i«  In  re  Board  of  Purchase  and  Supplies,  etc.,  37  Nebr.,  425. 

3"Opin.  of  the  Justices,  72  N.  H.  601. 

'"In  re  Opin.  of  Justices,  74  N.  H.  606. 

»»In  re  Opin.  of  Justices,  75  N.  H.  624. 

«"  In  re  Opin.  of  the  Justices,  77  N.  H.  606. 

321  Opin.  of  the  Justices,   18  R.  I.  824. 

^  In  the  matter  of  the  Executive  Commimication,  etc.,  15  Fla.  739. 

^  In  re  Advisory  Opin.  to  the  Governor,  31  Fla.  1;  and  In  re  Opin.  of 
the  Justices,  68  Fla.  560. 

3^  In  re  Opin.  of  the  Justices,  167  Mass.  599. 

«*  Opin.  of  Justices,  70  N.  H.  638. 

''"Opin.  of  the  Justices,  72  N.  H.  605. 

«7  In  re  Opin.  of  tiie  Justices,  73  N.  H.  625. 


138      DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

under  impeachment,^^^  the  salaries  and  expenses  of  the  State 
board  of  land  commissioners,^^^  the  administration  of  a  par- 
ticular piece  of  State  land,^°  and  the  nature  of  a  railroad  com- 
mission, if  created.^^ 

On  the  other  hand  there  have  been  nine  instances  where 
the  justices  have  declined  to  give  any  opinion.  Refusal  to 
construe  an  existing  statute  was  the  reason  given  in  In  the 
matter  of  Inquiries  Submitted,  etc.,  58  Missouri,  369,  (relating 
to  the  power  of  the  governor  to  issue  commissions)  and  In  re 
HR.  No.  25,  15  Colorado,  602,  (concerning  the  powers  of  the 
State  treasurer).  In  Advisory  Opinion  to  the  Governor,  61 
Florida,  1,  the  justices  declared  that  the  submission  of  proposed 
United  States  amendments  to  the  legislature  was  not  an  exe- 
cutive duty  calling  for  their  assistance.  No  opinion  was  re- 
turned by  the  Colorado  justices  to  a  question  as  to  the  powers 
of  the  board  of  land  commissioners  to  extend  mineral  leases, 
because  the  private  rights  of  lessees  might  be  affected.^^^  ^n 
interrogatory  relating  to  the  powers  and  duties  of  a  police  com- 
mission was  returned  unanswered  because  the  term  of  the  in- 
quiring governor  had  expired,  in  Opinion  of  the  Justices,  70  New 
Hampshire,  640.  Lastly,  the  Minnesota  justices  have  twice 
refused  opinions — in  Rice  v.  Austin,  19  Minnesota,  103,  (re- 
garding the  governor's  duty  to  transfer  land  to  the  land  com- 
missioners) and  State  v.  Dike,  20  Minnesota,  363,  (about  the 
powers  of  the  secretary  of  state) — on  the  ground  that  extra- 
judicial consultation  of  the  justices  was  unauthorized  by  the 
constitution.  It  will  be  remembered  that  the  refusal  of  the 
United  States  supreme  court  to  answer  Washington's  questions 
upon  the  neutral  duties  of  the  executive  department  was  based 
essentially  upon  this  ground.    The  reason  for  the  refusal  in 

'^^  In  the  matter  of  the  Executive  Communication,  etc.,  14  Fla.   289. 

'^"In  re  Questions  by  the  Governor,  55  Colo.  105. 

""In  re  Opin.  of  Judges,  13  S.  D.  191. 

^^  In  re  Railroad  Commissioners,  15  Nebr.  679. 

232  In  re  Leasing  of  State  Lands,  27  Colo.  99. 


THE  ADVISORY  OPrNION  IN  PRACTICE  139 

In  re  Board  of  Sinking  Fund  Commissioners,  32  S.  W.  414  (Ky.) 
— when  the  board  of  sinking  fund  commissioners  petitioned 
for  advice  in  connection  with  the  State's  prison — is  unsatis- 
factory, for  the  chief  justice  waives  the  question  of  jurisdiction 
and  contents  himself  with  saying  the  court  would  be  as  much 
embarrassed  in  determining  the  questions  as  the  commissioners. 
The  question  of  jurisdiction  is  also  left  unsettled  in  In  the  matter 
of  the  Executive  Communication,  etc.,  12  Florida,  653,  where 
the  justices  avoided  expressing  an  opinion  as  to  the  Uabihty 
of  the  governor  to  impeachment  by  an  extra  session  of  the 
legislature,  by  declaring  there  was  not  a  quorum  present  anyway. 
Two  opinions  by  the  Canadian  supreme  court  deal  with 
particular  powers  of  the  governor-general — to  make  remedial 
orders  on  appeal  from  provincial  statutes,^  and  to  grant  U- 
censes.^ 

3.  The  Judiciary 

As  might  be  expected  the  number  of  cases  dealing  with 
the  third  department  of  government  is  comparatively  small. 
Of  course  in  this  section,  as  in  the  two  following  sections,  it 
should  be  remembered  that  the  interrogations  which  occasioned 
the  opinions  were,  in  verbis,  questions  as  to  legislative  or  exe- 
cutive powers.  It  is  only  when  the  consideration  of  these  powers 
is  quite  subordinate  and  the  emphasis  is  plainly  upon  some  mat- 
ter which  primarily  affects  judicial  organization  and  procedure, 
or  the  electorate,  that  the  opinion  is  adverted  to  under  these 
heads. 

Most  of  the  thirty-two  opinions  collected  here  are  concerned 
with  questions  of  organization — the  tenure  of  justices  of  a 
pohce  court  or  a  justices'  court,^  of  justices  of  county  courts,^ 

^  In  re  Certain  Statutes  of  .  .  .  Manitoba  Relating  to  Education,  22 
Can.  S.  C.  R.  577. 

^  In  re  International  and  Inter-provincial  Ferries,  36  Can.  S.  C.  R.  206. 
'^Opin.   of  the  Justices,   3   Cush.   584. 
^^Opin.  of  the  Justices,  3  Gray,  601. 


140     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

of  certain  justices  of  the  supreme  court,^^  of  justices  of  the 
peace,^^  of  a  circuit  judge,^^  of  county  judges,^°  of  certain 
district  judges  ;^^  legislative  power  to  change  the  number  or 
boundaries  of  judicial  districts,^  or  the  effect  of  such  a  change;^ 
the  appointment  or  removal  of  various  classes  of  judges;^ 
the  eligibihty  of  women,^  or  of  a  sheriff,  deputy  sheriff  or 
coroner,^^^  or  of  a  register  of  deeds,  to  be  appointed  justice 
of  the  peace  ;^^  the  effect  of  the  creation  of  a  new  court  upon  a 
court  already  existing.^^  Several  were  prompted  by  questions 
about  the  jurisdiction  or  powers  of  different  courts  or  judges — 
the  power  of  a  single  judge  to  enter  final  judgment  on  a  plea  of 
guilty  of  murder  in  the  first  degree,^^  the  power  of  inferior 
judges  to  instruct  juries,^^  the  jurisdiction  of  justices  of  the 
peace,^^^  or  of  county  courts  in  probate  matters,^^^  ^^d  the  pos- 

3"  In  re  Opin.  of  Judges,  23  R.  I.  635;  and  In  re  Supreme  Court  Va- 
cancy, 4  S.  D.  532. 

"8  In  the  matter  of  the  Executive  Communication,  etc.,  15  Fla.  735. 

339  Advisory  Opinion,  etc.,   16  Fla.  841. 

»*°  In  re  Opin.  of  the  Justices,  68  Fla.  560. 

'"  In  re  Opin.  of  the  Justices,  69  Fla.  653;  and  In  re  Election  of  Dis- 
trict Judges,  11  Colo.  373. 

3*2  Opin.  of  the  Judges,  etc.,  55  Mo.  215;  and  In  the  Matter  of  the 
Executive   Communication,   etc.,    14  Fla.   320. 

3*3  In  re  SR.  No.  9,  54  Colo.  429. 

3**  In  re  Advisory  Opinion  to  the  Governor,  45  Fla.  154;  In  re  Opinion 
of  Justices,  67  Fla.  423;  Opin.  of  the  Justices,  67  Fla.  489;  and  In  re  Su- 
preme Court  Vacancy,  4  S.  D.  532. 

*«  Opin.  of  the  Justices,  107  Mass.  604. 

»«Opin.  of  the  Justices,  3  Me.  484. 

»*'Opin.s  of  the  Justices,  etc.,  68  Me.  594. 

3"  Opin.   of  the  Justices,   3   Gray,   601. 

**»  Opin.  of  the  Justices,  9  Allen,  585.  In  connection  with  this  opinion 
see  Green  v.  Commonwealth,  12  Allen,  155. 

350  In  re  Opin.  of  the  Justices,  24  R.  I.  625. 

3»i  In  the  matter  of  the  Constitutionality  of  HB.  No.  158,  9  Colo.  625. 

»*'  In  re  SR.  Relating  to  SB.  No.  31,  12  Colo^  340.  For  the  questions 
in  this  case  see  SJ.  1889,  p.  1155. 


THE  ADVISORY  OPINION  IN  PRACTICE  I4I 

sible  jurisdiction  of  a  court  of  appeals,  if  created.^  Still 
others  deal  with  jury  problems — the  constitutionality  of  certain 
restrictions  as  to  jury  trials,^  or  of  petit  juries  composed  of 
less  than  twelve  men,  or  of  verdicts  by  less  than  twelve.^ 
The  remaining  questions  are  miscellaneous  in  character — the 
definition  of  justice  of  an  inferior  court,^  whether  a  judgment 
of  the  supreme  court  can  be  reversed  by  legislative  enactment,^^ 
the  effect  of  the  aboUtion  of  district  courts,^^  the  constitution- 
ality of  the  powers  of  a  court  of  appeals  as  contained  in  a  pending 
bill,^^  the  beginning  of  the  term  of  a  certain  district  court,^^** 
and  whether  a  county  judge  was  a  county  oflScer  within  the 
meaning  of  the  constitution.^^^ 

In  the  entire  thirty-two  opinions  there  are  only  two  clear 
refusals,  both  by  the  same  court  in  response  to  the  same  ques- 
tion— the  extent  of  a  Florida  governor's  powers  in  the  appoint- 
ment of  circuit  judges  under  a  statute.^®^  The  dependence  of 
the  answer  upon  the  construction  of  a  law  differentiated  these 
cases  from  In  re  Opinion  of  Justices,  67  Florida,  423,  and  made 
a  refusal  certain.  In  one  other  case  referred  to  above,  there 
was  a  half-way  refusal.  When  asked  about  the  constitutionality 
of  verdicts  in  civil  cases  by  three-fourths  of  a  jury,  a  Colorado 
court  pointed  out  that  they  had  already  decided,  in  a  case 
brought  regularly  before  them,  that  the  legislature  was  not 
restricted  in  deaHng  mth  jur>^  trials  in  civil  actions.^    Now, 

^^  In  re  Constitutionality  of  a  Court  of  Appeals,  15  Colo.  578. 

»*  In  re  Opin.  of  the  Justices,  207  Mass.  606. 

»w  Opin.  of  the  Justices,  etc.,  41  N.  H.  550;  and  In  re  SB.  No.  142, 
etc.,  26  Colo.  167. 

^  Opin.s  of  the  Justices,  etc.,  68  Me.  594. 

^^  Opin.  of  the  Supreme  Court,  3  R.  I.  299. 

^'Opin.  of  Court  in  Response  to  Governor,  43  Mo.  351. 

359  In  the  matter  of  the  Constitutionality  of  SB.  No.  76,  9  Colo.  623. 

"""In  re  HR.  Relating  to  HB.  No.  218,  etc.,  12  Colo.  359. 

**In  re  Compensation  of  County  Judges,  18  Colo.  272. 

*2  In  re  Opin,  of  the  Justices,  69  Ra.  632;  and  In  re  Opin.  of  the  Jus- 
tices, 69  Fla.  653, 

»3In  re  SB.  No.  142,  etc.,  26  Colo.  167. 


142      DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

they  continued,  it  is  not  the  practice  of  this  court  to  review 
decisions  in  litigated  cases,  in  ex  parte  proceedings;  so  we  can 
express  no  further  opinion.  This  is  certainly  not  a  refusal. 
In  fact  the  legislature  evidently  was  satisfied,  for  the  bill  was 
passed.^^  However,  the  reasonableness  of  such  an  answer 
is  questionable.  It  is  certainly  not  in  Hne  with  the  history  of 
the  advisory  opinion,  for  it  would  make  it  impossible  to  answer 
many  questions  as  to  the  "state  of  the  law"  on  a  particular 
point,  since  the  "state  of  the  law"  does  not  depend  on  what  a 
supreme  court  may  do  in  the  future  but  may  well  depend  on 
what  it  has  decided  in  the  past.^^ 

Twice  the  Canadian  supreme  court  has  answered  judicial 
questions,   once  as  to   the  jurisdiction   of  provincial   county 
courts,^^^  once  as  to  procedure  under  the  criminal  code.^^^ 
4.  Sufrage  and  Elections. 

From  a  numerical  standpoint,  this  is  quite  an  important 
section.  A  full  one-eighth  of  the  opinions  given  under  a  con- 
stitutional requirement  in  the  United  States  contain  questions 
relating  to  elections  or  the  exercise  of  the  suffrage.  Some  in- 
quiries have  been  repeated  in  several  different  instances — the 
taxation  quaUfication  for  voters,^^^  the  property  quahfication,^®^ 
the  residence  qualification,^''^  the  registration  requirement,^'* 

3«*Sess.  L.   1899,  p.  244. 

3«See   p.    256   infra. 

3e«  In  re  County  Courts  of  British  Columbia,  21  Can.  S.  C.  R.  446. 

3"  In  re  Criminal  Code,  43  Can.  S.  C.  R.  434. 

^8  Opin.  of  the  Justices,  11  Pick.  537;  Opin.  of  the  Justices,  5  Mete. 
591;  In  re  the  Providence  Voters,  13  R.  I.  737;  In  re  the  Realty  Voters, 
14  R.  I.  645;  In  re  Canvassers'  Powers,  17  R.  I.  809;  and  Opin.  to  the 
Governor,  24  R.  I.  630. 

'"  In  re  the  Voting  Laws,  12  R.  I.  586;  In  re  the  Newport  Charter, 
14  R.  I.  655;  In  re  Qualification  of  Voters,  19  R.  I.  614;  and  Opin.  of  the 
Justices,  31  N.  C.  App. 

""  Opin.  of  the  Justices,  1  Mete.  580;  Opin.  of  the  Justices,  5  Mete.  587; 
Opin.  of  the  Justices,  7  Me.  492;  and  Opin.  of  the  Justices,  7  Me.  497. 

3"  In  re  the  Registry  Laws,  12  R.  I.  580;  In  re  the  Polling  Lists,  13 
R.  I.  729;  In  re  the  Constitutional  Amendment,  16  R.  I.  754;  and  Opin. 
of  the  Justices,  22  R.  I.  651. 


THE  ADVISORY  OPINION  IN  PRACTICE  143 

the  form  of  ballots,^^^  and  the  form  or  effect  of  official  retums.^^^ 
The  introduction  of  voting  machines  has  prompted  inquiries 
in  three  instances,^'**  and  the  so-called  soldiers'  voting  acts 
of  the  Civil  War  in  four.^^^  In  two  cases  the  justices  have 
given  advice  as  to  the  rights  of  towns  or  districts  to  waive  the 
sending  of  representatives  to  the  legislature.^^®  The  right  of 
particular  classes  of  people  to  exercise  the  suffrage  is  the  subject 
matter  of  four  opinions — of  inhabitants  of  unincorporated 
plantations,"^  of  paupers  or  indigent  persons,^^^  of  negroes,^^^ 
and  of  certain  foreign-born  residents  in  territory  acquired  by- 
treaty  .^^°  Other  questions  are  of  a  miscellaneous  character—; 
the  effect  of  paying  a  special  poll  tax  upon  the  right  to  vote,^*^ 
the  constitutional  date  for  the  election  of  representatives,'®^ 
whether  annexation  to  towns  confers  a  right  to  vote  for  the 
representatives  from  those  towns,'^  the  power  of  the  governor 

"-Opin.  of  the  Justices,  7  Me.  492;  Opin.  of  the  Justices,  7  Me.  497; 
Opin.  of  the  Justices,  etc.,  64  Me.  596;  In  re  the  Ballot  Act,  16  R.  I.  766; 
and  In  re  the  Ballot  Pro\ision,  17  R.  I.  825. 

3"  Opin.  of  the  Justices,  etc.,  25  Me.  567;  Statement  of  Facts,  and 
Questions,  38  Me.  597;  Opin.s  of  the  Justices,  etc.,  68  Me.  587;  Questions 
Submitted,  etc.,  70  Me.  560;  and  Statement  and  Questions  Submitted,  etc., 
70  Me.  570. 

"*  In  re  HB.  No.  1291,  178  Mass.  605;  Opin.  of  the  Justices,  19  R.  I. 
729;  and  In  re  Voting  Machmes,  23  R.  I.  630. 

3-5  Opin.  of  the  Justices,  44  N.  H.  633;  Opin.  of  the  Justices,  etc.,  45 
N.  H.  595;  Opin.  of  the  Judges,  etc.,  30  Conn.  591;  and  Opin.  of  the 
Judges,  etc.,  37  V^t.  665. 

3"*  Opin.  of  the  Justices,  15  Mass.  536;  and  Opin.  of  the  Justices,  6 
Me.  486. 

"'  Opin.  of  the  Justices,  3  Mass.  568. 

^'*  Opin.  of  the  Justices,  7  Me.  497. 

3'^  Opin.s  of  the  Justices,  etc.,  44  Me.  505. 

380  Opin.s  of  the  Justices,  etc.,  68  Me.  589;  there  are  two  separate 
interrogatories  here. 

3"  Opin.  of  the  Justices,  18  Pick.  575. 

'«  Opin.  of  the  Justices,  23  Pick.  547. 

3"  Opin.  of  the  Justices,  6  Cush.  578. 


144     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

or  aldermanic  boards  to  recount  ballots  in  contested  elections,^^ 
the  effect  of  making  a  grant  of  municipal  suffrage  to  women 
conditional  upon  the  approval  of  a  majority  of  a  certain  class 
of  voters,^^  the  power  of  the  legislature  to  permit  women  to 
vote  upon  a  proposed  constitution,^^  or  to  divide  towns  into 
voting  districts,^^^  or  to  provide  a  special  election  for  delegates 
to  a  constitutional  convention,^^^  the  governor's  right  to  reject 
illegal  ballots,^^^  the  legaUty  of  certain  irregular  votes,^^^  the 
form  of  a  petition  for  a  referendum,^^^  the  legaUty  of  election 
by  pluralities,^^^  the  power  of  a  town  council  to  order  a  new 
election,^^^  the  method  of  marking  the  ballot,^^^  the  legality 
of  an  order  for  a  new  election,^^^  the  procedure  in  an  election 
by  both  houses  of  the  legislature,^^^  the  power  of  a  city  council 
to  elect  the  school  committee/^^  and  the  control  of  nominations 
by  poUtical  parties.^^^ 

Two  things  are  worthy  of  notice.  All  but  eight  of  these 
fifty-seven  opinions  come  from  three  States — Massachusetts, 
Maine  and  Rhode  Island.  This  third  midget  State  alone 
furnishes  twenty-one  of  them  (nearly  half  of  the  total  number 
of  advisory  opinions  found  in  the  Rhode  Island  reports),  while 
Colorado  with  its  total  of  ninety-two  is  represented  here  by 
a  single  one.     Secondly,  there  are  no  refusals.    Apparently 

3"0pin.  of  the  Justices,   136  Mass.   583. 

'*5ln  re  Municipal  Suffrage  to  Women,   160  Mass.  586. 

38«In  re  Opin.  of  the  Justices,  115  N.  E.  921  (Mass.). 

387  In  re  Opin.  of  the  Justices,  73  N.  H.  618. 

388  In  re  Opin.  of  the  Justices,  76  N.  H.  586. 

389  Opin.  of  the  Justices,  54  Me.  602. 

390  Opin.s  of  the  Justices,  etc.,  64  Me.  588. 

391  In  re  Opin.  of  the  Justices,  114  Me.  557. 

392  In  re  the  PluraKty  Elections,  15  R.  I.  617. 

393  In  re  the  Narragansett  Election,  16  R.  I.  761. 

394  In  re  the  Vote  Marks,  17  R.  I.  812. 

395  In  re  the  Representative  Election,  17  R.  I.  820. 
39«  Opin.  of  the  Justices,  18  R.  I.  824. 

397  In  re  Election  of  School  Committee,  etc.,  28  R.  I.  629. 

398  In  the  matter  of  HB.  No.  203,  9  Colo.  631. 


THE  ADVISORY  OPINION  IN  PRACTICE  145 

questions  concerning  the  suffrage  or  electoral  matters  are,  as 
a  rule,  "important  questions"  within  the  meaning  of  an  ad- 
visory opinion  clause  in  the  constitution.  This  point  is  not 
discussed  in  any  of  these  opinions,  nor  is  any  doubt  suggested 
as  to  the  solemnity  of  the  occasion. 

5.  Miscellaneous. 

Nineteen  opinions  have  been  relegated  to  this  congeries  of 
odds  and  ends.  Eleven  of  these  have  to  do  with  problems 
connected  with  the  amendment  of  the  State  constitution,  but 
in  only  eight  instances  did  the  justices  advise  on  the  point 
referred — the  power  of  the  legislature  to  call  a  convention  to 
amend  the  constitution,^^^  or  to  determine  the  mode  of  sub- 
mission of  amendments  to  the  people,^"*'  or  to  make  a  new 
apportionment  apply  to  the  election  of  delegates  to  a  constitu- 
tional convention  ;^^^  the  powers  of  a  constitutional  convention 
called  to  propose  special  amendments,  and  the  possibiUty  of 
extra-constitutional  methods  of  amendment,*^  the  effect  of 
a  decree  of  the  convention  as  to  the  time  for  amendments  to 
take  effect, ^''^  the  time  when  an  amendment  adopted  by  popular 
vote  takes  effect,'*^'*  the  extent  of  publicity  required  for  amend- 
ments proposed  to  the  people,^^^  the  form  of  such  amendments 
and  the  effect  of  a  popular  adoption  of  two  contradictory 
amendments.*"^  But  the  necessity  of  construing  a  statute 
prevented  the  Florida  justices  from  telHng  the  governor  whether 
the  legislature  had  duly  passed  an  amendment  to  be  submitted 
to  the  people,*"^  and  the  Colorado  supreme  court  has  twice 

399  In  re  the  Constitutional  Convention,  14  R.  I.  649. 
""In  re  Opinion  of  Supreme  Court,  29  R.  I.  611. 
*°^  Deb.  Mass.  Conv.  1853, 1, 138;  Jameson,  Constitutional  Conventions, 
p.  663. 

"2  Opin.  of  the  Justices,  6  Cush.  573. 

«3  Opin.  of  the  Justices,  76  N.  H.  612. 

*<"  In  re  Advisory  Opinion  to  the  Governor,  34  Fla.  500. 

*«  In  re  HR.  No.  10,  50  Colo.  71. 

*°«In  re  Senate  File  31,  25  Nebr.  864. 

*"In  re  Advisory  Opin.  to  the  Governor,  64  Fla.  1. 


146     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

refused  an  opinion  upon  the  constitutionality  of  bills  connected 
with  proposed  amendments  because  the  question  was  not 
sufficiently  definite  and  the  pending  bill  not  far  enough  ad- 
vanced.^^^ 

Of  the  remaining  eight  cases,  two  deal  with  the  care  of 
paupers,  under  a  statu te^^^  or  in  unincorporated  places  ;^^°  two 
with  county  powers  and  liabiUties,^^^  two  with  problems  of 
municipal  government  ;^^2  one  with  the  amount  of  mileage  and 
the  choice  of  routes  permitted  to  members  of  the  legislature  ;^^^ 
and  one  was  a  request  that  the  justices  draft  a  schedule  of  Eng- 
lish statutes  then  in  force  in  the  State  of  Pennsylvania.^^*  In 
the  New  Hampshire  case  just  referred  to,  an  opinion  was  re- 
fused on  the  ground  that  a  reply  could  not  be  of  assistance  to 
the  interrogator  and  so  the  question  did  not  come  within  the 
advisory  opinion  clause. 

C.  Form  of  Reities 

Of  the  eight  States  in  which  the  advisory  opinion  clause 
has  found  constitutional  recognition,  only  four  have  set  forth 
any  requirements  as  to  the  form  which  such  opinions  must 
take.  In  Rhode  Island  and  Florida,  they  must  be  made  in 
writing,  and  the  same  result  is  necessarily  attained  in  Missouri 
and  Colorado  by  the  provision  that  they  must  be  pubHshed  in 
connection  with  the  regular  decisions  of  the  court.  As  a  matter 
of  fact,  however,  probably  because  of  the  judicial  propensity 
for  exactness  and  dependence  upon  precedent,  as  well  as  from 

"8  In  re  HB.  No.  495,  etc.,  26  Colo.  182;  and  In  re  SR.  No.  7,  etc., 
29  Colo.  350. 

<09  Opin.  of  Justices,  1  Mete.  572. 

«o  Opin.s  of  the  Justices,  etc.,  68  Me.,  593. 

*"  In  the  matter  of  the  Executive  Communication,  etc.,  13  Fla.  687; 
and  In  re  Funding  of  County  Indebtedness,  15  Colo.  421. 

*"Opin.  of  the  Justices,  67  N.  H.  601;  and  Opin.  of  the  Justices,  52 
Me.  595. 

«3  Opin.s  of  the  Justices,  etc.,  69  Me.  596. 

*^*  Report  of  the  Judges,  etc.,  3  Binney  595. 


THE  ADVISORY  OPINION  IN  PRACTICE  147 

force  of  habit,  advisory  opinions  have  been  rendered  in  writing*^ 
and,  except  in  a  few  early  cases,  have  been  preserved  in  the 
regular  reports. 

But  even  at  the  present  time  there  is  some  variation  in  the 
form  of  opinions  in  different  States,  and  this  variation  was  much 
more  marked  when  the  advisory  opinion  was  in  its  infancy 
(in  the  United  States).  The  EngUsh  practice  exercised  con- 
siderable influence  in  Massachusetts,  not  only  upon  the  extent 
of  extra-judicial  consultation  permitted,^^  but  also  upon  the  atti- 
tude of  the  judges  and  the  manner  of  their  responses.  In  the 
first  opinion  given^^^  (in  1781),  the  justices  not  merely  expressed 
their  sensibility  of  the  honor  done  them  by  such  a  reference,^^ 
but  they  actually  came  into  the  senate  to  dehver  their  several 
opinions  in  person.^^  This  is  unique.  In  the  next  few  cases, 
the  opinions  are  informally  coromunicated  in  a  letter-like  docu- 
ment signed  by  aU  the  justices.  Gradually  this  borrows  from 
the  more  studied  formahty  of  regular  decisions  and  develops 
into  an  impersonal  exposition  of  the  law  touching  the  questions 
submitted.  It  differs,  however,  from  the  decisions  in  litigated 
cases,  in  that  the  signatures  of  the  advisers  are  stiU  appended, 
after  the  epistolary  model.  This  is  the  standard  form  in  most 
of  the  Massachusetts  cases,  and,  after  the  practice  becomes 
settled,  is  followed  in  New  Hampshire,  Maine,  Rhode  Island, 
Missouri,  Florida,  and  South  Dakota  as  well.  But  in  Colorado 
the  opinions  are  recorded  as  given  per  Curiam.^^    The  reader 

^^  Quite  possibly  the  request  in  the  first  opinion,  of  1781  (126  Mass. 
547),  that  the  rephes  be  made  in  writing  to  the  houses  of  the  Massachusetts 
legislature  had  something  to  do  with  starting  them  off  right. 

*^*  See  pp.  31-33  supra. 

«7  Reported  in  126  Mass.  547. 

*^*  Cf.  Report  of  the  Judges,  etc.,  3  Binney,  595. 

*^^  Cf.  the  appearance  of  the  judges  before  the  Rhode  Island  General 
Assembly  in  Trevett  v.  Weeden — ^Thayer,  Cases,  I,  73. 

*2o  So,  too,  in  Opin.  of  the  Justices,  70  N.  H.  640;  In  re  Probate  Blanks, 
71  N.  H.  621;  In  re  Construction  of  Revenue  Law,  2  S.  D.  58;  and  In  re 
Construction  of  School  Law,  Ch.  9,  s.  7,  2  S.  D.  71. 


148     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

should  recall  that  the  advisory  opinion  clause  of  the  Colorado 
constitution  imposes  the  duty  of  replying  upon  the  supreme 
court,  while  in  all  the  other  States  the  opinions  are  to  be  given 
by  the  justices  of  the  supreme  court.'^^  The  judges  have 
taken  this  quite  hterally^  and  these  curial  decisions  are  the 
result.'*^  This  is  varied  somewhat  in  nearly  a  score  of  instances, 
where,  because  the  questions  called  for  more  than  the  usual 
categorical  replies,  the  writing  of  the  opinion  has  been  entrusted 
to  some  one  justice,  as  in  ordinary  judicial  proceedings;  here 
the  opinion  is  delivered  by  the  justice  who  composed  it,  "for 
the  court.  "^  A  similar  course  has  been  pursued  in  a  few  cases 
in  other  States.'^ 

<"  See  p.  51  supra. 

♦22  In  the  matter  of  the  Constitutionality  of  SB.  No.  65,  12  Colo.  466; 
In  re  Priority  of  Legislative  Appropriations,  19  Colo.  58;  and  see  pp.  221-22 
infra. 

♦23  Cf.  the  two  Florida  cases  where  the  opinions  are  given  "in  banc," 
and  signed  by  all  the  justices — In  re  Opin.  of  Justices,  54  Fla.  136;  and 
Advisory  Opin.  to  the  Governor,  61  Fla.  1. 

«*In  the  matter  of  the  Constitutionahty  of  SB.  No.  65,  12  Colo.  466; 
In  re  Appropriations  by  General  Assembly,  13  Colo.  316;  In  re  Funding  of 
County  Indebtedness,  15  Colo.  421;  In  re  Speakership  of  the  House  of 
Representatives,  15  Colo.  520;  In  re  Continuing  Appropriations,  18  Colo. 
192;  In  re  Loan  of  School  Fund,  18  Colo.  195;  In  re  Leasing  of  State  Lands, 

18  Colo.  359;  In  re  Priority  of  Legislative  Appropriations,  19  Colo.  58;  In  re 
Canal  Certificates,  19  Colo.  63;  In  re  Governor's  Proclamation,  19  Colo. 
333;  In  re  Amendments  of  Legislative  Bills,  19  Colo.  356;  In  re  Penitentiary 
Commissioners,  19  Colo.    409;    In   re    Fire   and    Excise    Commissioners, 

19  Colo.  482;  In  re  Constitutionality  of  SB.  No.  293,  21  Colo.  38;  In  re  State 
Board  of  Equalization,  24  Colo.  446;  In  re  House  Resolution  No.  10,  50 
Colo.  71;  In  re  Interrogatories  of  the  Senate,  54  Colo.  166;  In  re  Questions 
of  the  Governor,  55  Colo.  17. 

♦28  Opin.  of  the  Judges,  etc.,  55  Mo.  215;  In  the  matter  of  Inquiries 
Submitted,  etc.,  58  Mo.  369  (practically);  In  the  matter  of  the  Executive 
Commvmication,  etc.,  12  Fla.  651;  In  the  matter  of  the  Executive  Communi- 
cation, etc.,  12  Fla.  686;  In  the  matter  of  the  Executive  Communication, 
etc.,  14  Fla.  283;  In  the  matter  of  the  Executive  Communication,  etc.,  14 
Fla.  285;  In  the  matter  of  the  Executive  Communication,  etc.,  14  Fla.  318;  In 
the  matter  of  the  Executive  Commimication,  etc.,  14  Fla.  320;  In  the  matter 


THE  ADVISORY  OPINION  IN  PRACTICE  149 

When  the  "justices"  are  required  by  the  constitution  to 
give  their  "opinions"  these  curial  opinions  would  seem  to  be 
inadmissible.  The  prototypal  advisory  opinions  in  the  English 
constitution  were  certainly  upon  an  individualistic  basis,  the 
judges  advising  not  as  an  organ  of  the  state  but  as  members 
of  the  council.'*^  The  judges  of  the  high  court  still  give  their 
opinions  seriatim  to  the  House  of  Lords  and  the  Canadian 
justices  usually  follow  the  same  rule  in  giving  advisory  opinions. 
Of  course,  if  the  judges  are  of  one  mind,  there  is  no  reason  why 
more  than  one  opinion  should  be  submitted,  provided  it  be  clear 
that  it  is  the  opinion  of  each  judge,  as  in  the  standard  form  in 
use  in  the  States  referred  to  above.'*^^  It  need  scarcely  be 
added  that  both  curial  and  signed  unanimous  opinions  will 
commonly  be  the  work  of  a  single  draftsman.'*^^  But  if  there 
is  disagreement  among  the  justices,  either  as  to  the  reasoning 
or  the  conclusions,  it  will  necessitate  separate  opinions.*^* 
This  was  the  practice  in  England^°  but  in  the  early  cases  in 

of  the  Executive  Communication,  etc.,  15  Fla.  735;  Advisory  Opin.,  etc.,  16 
Fla.  841;  and  In  re  Executive  Communication,  etc.,  23  Fla.  297. 

♦»  Cf.  Paty's  Case  (14  East  92  n.),  Prince  of  Wales'  Case  (Fortescue, 
401). 

*2'  Cf.  the  opinion  in  Sackville's  Case,  2  Eden,  371. 

«8  Cf.  the  note  of  the  reporter  to  Opin.  of  the  Justices,  52  N.  H.  622. 
concerning  the  modus  operandi  in  Judicial  Opin.,  35  N.  H.  579,  where  there 
was  a  single  opinion  signed  by  all  the  judges:  "No  authorities  were  cited  in 
the  opinion  as  finally  drawn  up  for  publication,  but  before  the  consultation 
an  elaborate  opinion  had  been  prepared  by  one  of  the  members  of  the  court, 
reviewing  at  length  all  the  authorities  . . .  which  patience  and  industry  could 
collect.  This  opinion  was  read  in  consultation,  the  authorities  were  care- 
fully considered,  the  opinions  of  the  judges  were  taken  seriatim,  and  the  court 
were  unanimous. " 

*2'  "If  the  questions  proposed  to  the  justices  came  before  us  as  a  court 
and  I  found  myself  imable  to  agree  vs-ith  my  brethren,  I  should  defer  to 
their  opinion  \s-ithout  any  intimation  of  dissent.  But  the  imderstanding 
always  has  been  that  questions  like  the  present  are  addressed  to  us  as  in- 
dividuals and  require  an  individual  answer."— per  Holmes,  J.,  in  In  re 
Mimicipal  Suffrage  to  Women,  160  Mass.  586. 

*3°  Paty's  Case  and  Prince  of  Wales'  Case,  td}i  supra. 


150  DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

this  country,  even  when  separate  opmions  were  given,  dissenting 
opinions  were  sometimes  omitted  from  the  advice  sent  to  the 
executive  or  legislative  department, ^^  the  judges  apparently 
thinking  the  opinion  of  a  majority  was  conclusive.  But  in 
two  instances'*^^  the  Maine  legislature  promptly  ordered  the 
dissenting  justices  to  send  in  their  opinions  as  well,  and  in  the 
first  of  these  cases  actually  proceeded  in  conformity  with  the 
dissenting  opinion.  Since  Constitutional  Law,  35  Maine, 
563,  there  has  been  no  case  where  a  justice  has  failed  to  send 
in  an  individual  opinion  or  indicate  his  approval  of  some  other 
opinion. 

Indeed  there  are  quite  a  good  many  cases  where  two  or  more 
opinions  have  been  submitted,  usually  because  of  disagree- 
ment,^ but  sometimes  even  when  the  opinions  are  practically 
the  same.^  In  a  few  cases  there  are  separate  rephes  con- 
taining a  refusal  to  express  any  opinion  on  the  question  in 

*^*  For  example  see  Opin.  of  the  Justices,  3  Me.  484;  Opin.  of  the  Justices, 
6  Me.  506;  and  later  Opin.  of  the  Court,  60  N.  H.  585. 

*^  Opin.  of  the  Justices,  6  Me.  486;  and  Constitutional  Law,  35  Me.  563. 

♦2'  In  re  Municipal  Suffrage  to  Women,  160  Mass.  586;  Opin.  of  the 
Justices,  166  Mass.  589;  In  re  HB.  No.  1291,  178  Mass.  605;  In  re  Opin. 
of  the  Justices,  211  Mass.  608;  In  re  Opin.  of  the  Justices,  77  N.  H.  611; 
Opin.s  of  the  Justices,  etc.,  18  Me.  458;  Opin.s  of  the  Justices,  etc.,  44  Me. 
505;  Opin.s  of  the  Justices,  etc.,  46  Me.  561;  Taxation  of  National  Banks, 
53  Me.  594;  State  v.  Cleveland,  58  Me.  564;  Opin.s  of  the  Justices,  etc., 
64  Me.  588;  Opm.s  of  the  Justices,  etc.,  62  Me.  596;  In  re  Opin.  of  the  Jus- 
tices, 99  Me.  515;  Opin.  of  the  Justices,  19  R.  I.  729;  In  re  Ten  Hour  Law, 
etc.,  24  R.  I.  603;  Opin.  of  Supreme  Court  Judges,  etc.,  55  Mo.  295;  In  the 
matter  of  the  Executive  Communication,  etc.,  12  Fla.  689;  In  the  matter 
of  the  Executive  Communication,  etc.,  14  Fla.  289;  In  re  Advisory  Opinion 
to  Governor,  62  Fla.  7;  and  In  re  Opin.s  of  the  Justices,  69  Fla.  632. 

*^  In  re  Municipal  Fuel  Plants,  182  Mass.  605;  In  re  Opin.  of  the  Jus- 
tices, 220  Mass.  627;  Opin.  of  the  Justices,  etc.,  41  N.  H.  553;  In  re  Opin. 
of  Justices,  74  N.  H.  606;  Opin.s  of  the  Justices,  etc.,  44  Me.  505;  Opin.s 
of  the  Justices,  etc.,  46  Me.  561;  Opin.s  of  the  Justices,  54  Me.  602;  Opin.s 
of  the  Justices,  58  Me.  590;  Questions  Submitted,  etc.,  72  Me.  542;  In  re 
Decision  of  Justices,  28  R.  I.  607;  Opin.  of  the  Court,  etc.,  49  Mo.  216; 
In  the  matter  of  the  Executive  Communication,  etc.,  12  Fla.  653;  In  the 


THE  ADVISORY  OPINION  IN  PRACTICE  151 

the  reference. ^°  Even  where  the  duty  of  giving  opinions  is 
imposed  upon  the  court  instead  of  the  justices,  there  is  no  reason 
:  •  why  separate  opinions  should  not  be  given,  as  in  Htigated  cases. 
In  fact  there  are  two  examples  of  this  in  Colorado."*^^  Difficult 
situations  may  arise,  however,  when  the  majority  think  that 
no  opinion  should  be  given,  while  the  minority  beUeve  the 
question  submitted  is  within  the  advisory  opinion  clause. 
Where  the  giving  of  advice  is  made  an  individual  duty,  on 
principle  the  minority  justices  should  be  free  not  only  to  say 
the  reference  is  within  the  constitution,  but  also  to  express 
their  opinions.'*^^  On  the  other  hand,  if  the  advice  is  looked 
upon  as  coming  from  the  court,  and  if  the  power  to  refuse 
opinions  exists  at  all,^^^  probably  the  judgment  of  the  majority 
upon  the  question  of  answerabihty  should  prevail.  Apparently 
this  is  the  view  adopted  in  In  re  Interrogatories  of  the  Senate, 
54  Colorado,  166,  by  the  two  dissenting  justices,  who  confine 
their  rephes  to  a  disapproval  of  the  court's  refusal  to  give 
the  opinions  asked. 

This  misapprehension  as  to  the  force  of  majority  agree- 
ment in  advisory  opinion  cases  has  cropped  out  occasionally 
in  other  States.  The  failure  to  include  dissenting  opinions 
in  Maine^^  was  evidently  the  result  of  an  assumption  that  the 


matter  of  the  Executive  Communication,  etc.,  13  Fla.  687;  In  the  matter 
of  the  Executive  Communication,  etc.,  13  Fla.  699;  In  the  matter  of  the 
Executive  Commimi cation,  etc.,  14  Fla.  277;  and  In  the  matter  of  the 
Executive  Communication,  etc.,  15  Fla.  739. 

«s  In  re  Opin.  of  Justices,  74  N.  H.  606;  Opin.  of  the  Justices,  58  Me. 
590;  Opin.s  of  the  Justices,  95  Me.  564;  and  In  re  Opin.  of  the  Justices,  103 
Me.  506. 

*»  In  re  SB.  Providing  for  a  Board  of  Public  Works,  etc.,  12  Colo.  188; 
and  In  re  Interrogatories  of  the  Senate,  54  Colo.  166. 

*3'  Cf.  Opin.s  of  the  Justices,  95  Me.  564;  and  In  the  matter  of  the 
Executive  Commimication,  etc.,  14  Fla.  289. 

«« See  pp.  161-77  infra. 

*"  Opin.  of  the  Justices,  3  Me.  484;  Opin.  of  the  Justices,  6  Me.  486; 
and  Opin.  of  the  Justices,  6  Me.  506. 


152     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

majority  opinion  would,  of  course,  be  followed.  In  another 
case^^  where  one  justice  was  out  of  the  country,  the  chief 
justice  states  that  he  has  consulted  only  the  other  justice, 
"  by  whom  he  is  authorized  to  state  the  following,  as  the  opinion 
of  a  majority  of  the  court."  Even  the  adoption  of  the  opinion 
of  a  single  dissenting  justice  as  the  guiding  principle  for  the 
legislature^^  did  not  bring  home  their  mistake  to  them,  for 
two  opinions  of  1878^  were  delivered  by  the  chief  justice  as 
the  "opinion  of  a  majority  of  the  justices."  This  erroneous 
position  may  have  been  a  corollary  of  the  Maine  theory  that 
the  opinions  of  the  court  were  binding  upon  the  interrogators.'*^ 
At  all  events  it  has  now  disappeared  in  Maine,^  and  has  found 
favor  in  no  other  State^  save  Colorado,  and  there  only  as  apply- 
ing to  the  determination  of  the  duty  to  give  an  opinion  upon 
the  question  asked.'*^ 

There  are  five  opinions  anomalous  in  form  which  might  be 
mentioned  in  closing  this  discussion.  Twice,  when  the  exigency 
of  the  occasion  necessitated  prompt  replies,  the  New  Hampshire 
justices  have  returned  categorical  answers  to  the  legislative 
inquiries,  supplementing  these  later  with  a  more  lengthy  dis- 
cussion.^^   Then  there  is  a  peculiar  case  in  Maine,^^  where, 

**°  Opin.  of  the  Justices,  3  Me.  487. 

**^  In  Opin.  of  the  Justices,  6  Me.  486. 

*"  Opin.s  of  the  Justices,  etc.,  68  Me.  593;  and  Opin.s  of  the  Justices, 
etc.,  68  Me.  594. 

**^  Statement  and  Questions  Submitted,  etc.,  70  Me.  570. 

***  Opin.s  of  the  Justices,  95  Me.  564.  * 

***  In  In  the  matter  of  the  Executive  Communication,  etc.,  12  Fla.  689, 
one  justice  delivered  an  opinion  for  the  "majority,"  but  a  dissenting  opinion 
was  also  included.  In  In  re  Opin.  of  the  Justices,  193  Mass.  605,  and  Opin. 
of  the  Justices,  196  Mass.  603,  a  majority  opinion  is  stated  in  the  headnote 
as  the  principle  decided,  but  this  is  doubtless  an  error  of  the  reporter  and 
not  of  the  court. 

**•  In  re  SR.  No.  10,  Concerning  Governorship  Contest,  33  Colo.  307; 
and  In  re  Interrogatories  of  the  Senate,  54  Colo.  166. 

**''  Opin.  of  the  Justices,  etc.,  45  N.  H.  595;  and  In  re  Opin.  of  the  Jus- 
tices, 66  N.  H.  629. 

««Opin.  of  the  Justices,  6  Me.  514. 


THE  ADVISORY  OPINION  IN  PRACTICE  153 

it  appears,  the  same  questions  were  referred  by  the  acting 
governor  and  by  the  senate,  and  two  justices  replied  to  the  former 
while  the  third  sent  a  concurrent  opinion  to  the  latter.  Almost 
as  strange  is  the  opinion  of  a  soUtary  justice  in  In  re  Election 
of  District  Judges,  11  Colorado,  373.  Finally  there  is  a  com- 
paratively recent  opinion  in  Rhode  Island^^  which  is  altogether 
unsigned — quite  probably  an  oversight. 

D.  Effect  of  Replies  upon  Interrogators 

Historically,  the  justification  of  the  advisory  opinion  is 
to  be  found  in  its  value  to  the  legislative  and  executive  depart- 
ments of  the  state.  In  theory,  it  is  the  judicious  counsel, 
upon  questions  of  a  legal  nature,  given  by  men  who  are  by  train- 
ing and  experience  especially  fitted  for  the  solution  of  such  ques- 
tions. It  is  entitled  to  receive  only  such  consideration  as  its 
intrinsic  qualities  merit.  It  is  spoken  not  ex  cathedra  but  as  a 
private  reconmiendation.  Furthermore  it  is  often  given  under 
circumstances  far  from  favorable  to  the  production  of  good 
opinions.  "(Questions)  are  perhaps  almost  necessarily  pre- 
sented xmder  circumstances  indicating  that  an  opinion  is  ex- 
pected speedily.  And  they  are  received,  when  the  mind, 
having  been  greatly  exhausted  by  the  pressing  labors  of  other 
official  duties,  no  longer  possesses  its  natural  vigor,  and  cannot 
exercise  even  its  accustomed  extent  of  thought  or  power  of 
reason.  And  it  cannot  be  allowed  the  time  for  that  extensive 
research  and  patient  examination  and  reflection,  which  the  im- 
portance of  the  questions,  often  a  little  aside  from  the  range 
of  its  accustomed  studies  and  duties,  may  demand.  And  it 
is  not  excited  to  action  and  aided  by  the  elaborate  examination 
and  forcible  reasoning  of  other  minds  which  have  been  inter- 
ested to  examine  and  argue  them.  Opinions  formed  under 
such  circumstances  can  scarcely  claim  the  respect  which  might 

«9  In  re  Abolishing  School  Districts,  27  R.  I.  598. 


154     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

be  readily  yielded  to  those  formed  under  more  favorable  aus- 
pices, "^o 

Yet  in  practice,  in  the  United  States,  advisory  opinions 
have  been  received,  for  the  most  part,  with  all  the  deference 
accorded  to  the  solemn  decisions  of  a  court  of  last  resort.  Both 
the  legislative  department  and  the  executive  department 
have  usually  treated  the  pronouncements  of  these  opinions 
as  final,  and  shaped  their  course  of  action  accordingly.  It 
is  to  be  expected  that  this  would  be  true  of  a  majority  of  the 
cases,  since  the  advice,  even  though  not  binding,  bears  the 
stamp  of  experts.  Also,  from  a  purely  practical  standpoint, 
the  interrogator  would  tend  to  follow  the  advice  given,  since 
he  realizes  that  if  the  same  matter  is  brought  before  the  same 
individuals,  as  a  court,  in  regular  judicial  proceedings,  there  is 
a  strong  probabihty  that  the  principles  announced  in  the 
extra-judicial  opinion  will  be  adopted  in  the  judicial  decision; 
and  in  fact  this  has  often  been  done,  as  will  be  seen  in  examining 
the  effects  of  advisory  opinions  within  the  judiciary  department 
itself.*5i 

It  will  be  worth  while  to  make  a  detailed  investigation,  in 
Colorado,  of  the  effect  of  extra-judicial  advice  upon  the  activi- 
ties of  the  legislature  and  governor.  On  fifty-eight  occasions 
the  legislature  has  referred  to  the  justices  questions  concerning 
pending  measures.  Eleven  of  these  met  with  refusals,  so 
that  subsequent  legislative  action  is  immaterial  to  this  inquiry. 
Among  the  forty-seven  remaining,  there  is  not  a  single  instance 
where  the  interrogating  legislature  took  any  action  in  opposition 

«°Opin.  of  the  Justices,  16  Me.  479.  Cf.  the  words  of  ex- Justice 
Morton:  "They  are  called  upon  to  give  an  opinion,  when  loaded  down  with 
labor,  and  almost  always  under  circumstances  when  the  question  requires 
to  be  immediately  answered.  They  have  to  put  off  all  other  things  and 
attend  to  this,  as  well  as  they  may,  without  a  hearing,  without  argument, 
and  without  time  to  investigate  authorities,  and  very  likely  in  a  remote 
part  of  the  Commonwealth,  where  they  are  not  able  to  get  authorities. " — 
Deb.  Mass.  Conv.  1853,  II,  p.  694. 

«^  See  pp.  233-36  infra. 


THE  ADVISORY  OPINION  IN  PRACTICE  155 

to  the  opinion  submitted  by  the  justices.'^^  i^  twenty-five 
cases  the  justices  approved  the  constitutionality  of  the  bills 
sent  to  them  and  the  bills  were  subsequently  enacted  into 
law,  or  at  least  approved  by  the  interrogating  house.*^  There 
are  three  examples  of  failure  to  pass  a  bill  after  the  justices  had 
expressed  their  satisfaction  as  to  constitutionaUty,^  but  this 
of  course  does  not  signify  that  the  legislature  disagreed  with 
the  justices  on  that  point.  In  another  case  a  bill  was  dropped 
after  favorable  answers  on  a  point  of  procedure  and  one  of 

construction.^    In  the  other  twenty-two  opinions,  the  replies 

« 

**2  In  one  instance  a  legislature  passed  an  act  disapproved  in  an  opinion 
given  four  years  earlier.  Cf.  Sess.  L.  1899,  232,  with  In  re  HB.  No.  203,  21 
Colo.  27,  and  In  re  a  Bill  Pro\dding  that  Eight  Hours  Shall  Constitute  a 
Day's  Labor,  21  Colo.  29,  and  see  In  re  Application  of  Morgan  for  Writ  of 
Habeas  Corpus,  26  Cclo.  415. 

«3  In  the  matter  of  the  Constitutionality  of  HB.  No.  18,  9  Colo.  623— 
Sess.  L.  1887,  340;  In  the  matter  of  HB.  No.  231,  9  Colo.  624— Sess.  L.  1887, 
247;  In  the  matter  of  the  Constitutionality  of  HB.  No.  158,  9  Colo.  625— 
Sess.  L.  1887,  56;  In  the  matter  of  HB.  No.  203,  etc.,  9  Colo.  631— Sess.  L. 
1887,  347;  In  the  matter  of  HB.  No.  38,  etc.,  9  Colo.  631— Sess.  L.  1887, 
250;  In  the  matter  of  SR.— in  Relation  to  SB.  No.  56,  9  Colo.  632— S J. 
1887,  2057;  In  re  SB.  Providing  for  a  Board  of  Public  Works,  etc.,  12  Colo. 
188— Sess.  L.  1889,  124;  In  re  HR.  Relating  to  HB.  No.  116,  12  Colo.  289— 
HJ.  1889,  2029;  In  re  SR.  Relating  to  SB.  No.  1,  12  Colo.  290— Sess.  L. 
1889,  228;  In  re  HB.  No.  238,  12  Colo.  337— Sess.  L.  1889,  360;  In  re  SR. 
Relating  to  SB.  No.  31,  12  Colo.  340— Sess.  L.  1889,  238;  In  re  Constitu- 
tionality of  a  Court  of  Appeals,  15  Colo.  578— Sess.  L.  1891,  118;  In  re 
Kindergarten  Schools,  18  Colo.  234— Sess.  L.  1893,  436;  In  re  Bounties, 
18  Colo.  273— Sess.  L.  1893,  23;  In  re  Internal  Improvements,  18  Colo. 
317— SJ.  1893,  1642,  SJ.  1893,  1179,  HJ.  1893,  1994,  SJ.  1893,  1233,  HJ. 
1893,  2211;  In  re  Governor's  Proclamation,  19  Colo.  333— Sess.  L.  1894,  3; 
In  re  Amendments  of  Legislative  Bills,  19  Colo.  356 — Sess.  L.  1894,  45;  In  re 
ConstitutionaUty  of  Substitute  for  SB.  No  83,  21  Colo  69— Sess.  L.  1895, 
36;  In  re  Inheritance  Tax,  HB.  No.  122,  23  Colo.  492— HJ.  1897,  874;  In  re 
SR.  No.  4,  54  Colo.  262— SJ.  1913,  771  and  1293. 

*^  In  the  matter  of  HR.  re  Constitutionality  of  Legislation  Redistricting 
State,  etc.,  12  Colo.  186;  In  re  SR.  Relating  to  Constitutionality  of  Proposed 
Reapportionment  Bill,  12  Colo.  187;  and  In  re  Constitutionality  of  SB.  No. 
69,  15  Colo.  601— SJ.  1891,  1062. 

«•  In  re  SR.  No.  9,  54  Colo.  429. 


156      DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

were  unfavorable  and  the  bills  either  failed,'^^  or  were  modified 
to  meet  the  objections  raised  by  the  justices.'*^^  Quite  often 
the  individual  responsible  for  the  bill  or  the  committee  in  charge 
of  it  has  moved  that  it  be  laid  on  the  table  because  the  supreme 
court  had  declared  it  unconstitutional.^^^  In  other  instances 
the  bills  came  to  a  vote  and  were  lost.^^^    Sometimes  they 

***  In  the  matter  of  the  ConstitutionaUty  of  SB.  No.  76,  9  Colo.  623 — 
SJ.  1887,  309;  In  the  matter  of  HB.  No.  166,  etc.,  9  Colo.  628;  In  the  matter 
of  a  Bill  for  an  Act,  etc.,  9  Colo.  629— S J.  1887,  1074  and  1078;  In  the  matter 
of  the  ConstitutionaUty  of  HB.  No.  270  and  SBB.  No.  69  and  No.  106,  9 
Colo.  635— SJ.  1887,  1665-6  and  2104,  and  HJ.  1887,  1612;  In  the  matter 
of  the  ConstitutionaUty  of  S.  9  of  HB.  No.  122,  9  Colo.  639— HJ.  1887,  1745 
and  1762;  In  re  House  Resolutions  Concerning  Street  Improvements,  15 
Colo.  598;  In  re  HB.  No.  10,  etc.,  15  Colo.  600;  In  re  Loan  of  School  Fund, 
18  Colo.  195;  In  re  Compensation  of  County  Judges,  18  Colo.  272— SJ.  1893, 
658;  In  re  HB.  No.  203,  21  Colo.  27— HJ.  1895,  633;  In  re  a  Bill  Providing 
that  Eight  Hours  Shall  Constitute  a  Day's  Labor,  21  Colo.  29— H J.  1895, 
723;  In  re  ConstitutionaUty  of  SB.  No.  293,  21  Colo.  38— SJ.  1895,  633; 
In  re  ConstitutionaUty  of  an  Act,  21  Colo.  46;  In  re  ConsoUdation  of  School 
Districts,  SB.  No.  23,  23  Colo.  499;  In  re  Annexation  and  ConsoUdation  ot 
School  Districts,  SB.  No.  9,  26  Colo.  136;  In  re  HR.  No.  10,  50  Colo.  71— 
HJ.  1911,  704. 

«7  In  the  matter  of  the  ConstitutionaUty  of  HB.  No.  270  and  SBB. 
No.  69  and  No.  106,  etc.,  9  Colo.  635— HJ.  1887,  1612,  and  Sess.  L.  1887, 
340;  cf.  In  the  matter  of  the  ConstitutionaUty  of  SB.  No.  76,  9  Colo.  623, 
with  In  re  ConstitutionaUty  of  a  Court  of  Appeals,  15  Colo.  578 — Sess.  L. 
1891,  118;  In  re  SR.  Relating  to  Internal  Improvement  Fund, '  tc,  12  Colo. 
285— SJ.  1889,  1023  and  1413,  HJ.  1889,  2529,  and  Sess.  L.  1889,  215,  S.  7; 
In  re  HR.  Relating  to  HB.  No.  349,  12  Colo.  395— HJ.  1889,  2192;  In  re 
HB.  No.  165,  15  Colo.  593,  595— Sess.  L.  1891,  268;  In  re  Extension  of 
Boundaries,  etc.,  18  Colo.  288— Sess.  L.  1893,  131,  see  S.  2  on  p.  135. 

«8  In  the  matter  of  the  ConstitutionaUty  of  SB.  No.  76,  9  Colo.  623— 
SJ.  1887,  309;  In  the  matter  of  the  ConstitutionaUty  of  HB.  No.  270  and 
SBB.  No.  69  and  No.  106,  etc.,  9  Colo.  635— SJ.  1887,  1665-6,  and  HJ. 
1887,  1612;  In  re  Compensation  of  County  Judges,  18  Colo.  272— S J.  1893, 
658,  and  cf.  ibid.  822;  In  re  HB.  No.  203,  21  Colo.  27— HJ.  1895,  633;  In 
re  a  Bill  Providing  that  Eight  Hours  ShaU  Constitute  a  Day's  Labor,  21 
Colo.  29— H J.  1895,  723;  In  re  House  Resolution  No.  10,  50  Colo.  71— H J. 
1911,  704. 

«9  In  the  matter  of  a  BiU  for  an  Act,  etc.,  9  Colo.  629— SJ.  1887,  1074, 


THE  ADVISORY  OPINION  IN  PRACTICE  157 

simply  died  a  natural  death.  When  the  subject  matter  was 
deemed  sufl&ciently  important  the  legislature  has  preferred 
to  resort  to  the  process  of  constitutional  amendment  rather 
than  waste  time  in  passing  measures  which  the  justices  had 
frowned  upon.  For  example,  after  several  attempts  to  enlarge 
the  powers  of  the  city  of  Denver,  and  to  consoUdate  school 
districts  therein  with  contiguous  districts,^"  a  comprehensive 
amendment  to  the  constitution  was  proposed  and  adopted  as 
Article  XX,  on  November  4,  1902.  However,  in  connection 
with  the  eight  hour  law,  the  adverse  opinions  of  In  re  HB. 
No.  203,  21  Colorado,  27,  and  In  re  a  Bill  Providing  that  Eight 
Hours  Shall  Constitute  a  Day's  Labor,  21  Colorado,  29,  were 
not  sufficiently  compeUing,  and  it  required  a  formal  decision'*^^ 
to  bring  about  the  constitutional  amendment  proposed  in 
Session  Laws  1901,  page  108,  and  adopted  at  the  following 
election. 

Turning  to  the  executive  department,  it  is  obviously  much 
more  difficult  to  ascertain  the  precise  effect  of  advisory  opinions 
upon  executive  action.  That  must  await  the  writing  of  a  de- 
tailed financial  history  of  the  State,  embodying  the  results  of 
an  examination  of  hundreds  of  auditor's  and  departmental 
reports  and  thousands  of  warrants  and  the  relating  of  these 
to  appropriation  and  revenue  bills  and  treasurer's  reports; 
for  the  most  important  of  the  gubernatorial  interrogatories 
have  had  to  do  with  the  administration  of  State  finances. 
Still  we  can  find  evidences  here  and  there  that  the  members 
of  the  executive  department  have  had  great  respect  for  extra- 
judicial advice.  How  unreservedly  successive  governors  have 
followed  the  doctrine  as  to  excess  appropriations  laid  down  in 
In    re   Appropriations    by    General   Assembly,    13    Colorado, 

1078;  In  the  matter  of  the  Constitutionahty  of  s.  9  of  HB.  No.  122,  9  Colo. 
639— HJ.  1887,  1745,  1762. 

«o  In  re  Constitutionality  of  SB.  No.  293,  21  Colo.  38;  In  re  Consolida- 
tion of  School  Districts,  SB.  No.  23,  23  Colo.  499;  and  In  re  Annexation  and 
ConsoUdation  of  School  Districts,  SB.  No.  9,  26  Colo.  136. 

**^  In  re  Application  of  Morgan  for  Writ  of  Habeas  Corpus,  26  Colo.  415 


158     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

316,  has  already  been  pointed  out.'*^^  Another  illustration  is 
at  hand  in  In  re  Fire  and  Excise  Commissioners,  19  Colorado, 
482.  In  attempting  to  remove  the  fire  and  excise  commis- 
sioners of  Denver  from  office,  the  governor  had  met  with  armed 
resistance  and  had  summoned  the  militia  forces  to  aid  him. 
While  conflict  was  imminent,  the  governor  paused  to  ask  the 
justices  of  the  supreme  court  who  were  the  lawful  fire  and  ex- 
cise commissioners.  In  their  reply,  the  justices  stated  that, 
assuming  the  facts  as  given  by  the  governor,  he  had  lawfully 
exercised  the  power  of  removal,  and  then  went  on  to  tell  him 
that  it  was  not  part  of  his  executive  duty  to  enforce  his  order 
of  removal  but  that  the  constitutional  remedy  was  by  judicial 
proceedings.  At  once,  cases  were  brought  against  the  recal- 
citrants by  quo  warranto.^ 

It  seems  probable  that  the  advisory  opinion  occupies  a 
similar  position  in  the  other  States  where  it  has  been  introduced. 
Dr.  Holcombe  of  Harvard  University^  tells  us  the  opinion  of 
the  justices  in  Massachusetts  "is  invariably  accepted."  That 
this  has  been  true  from  the  beginning  is  indicated  by  Opin.  of 
the  Justices,  126  Massachusetts,  547  (1781)  and  Opin.  of  the 
Justices,  115  Massachusetts,  602  (1874).  Indeed,  not  long  ago 
the  court  probably  was  responsible  for  the  initiation  of  a  piece 
of  legislation.  In  In  re  Opin.  of  Justices,  209  Massachusetts, 
607,  an  opinion  was  given  as  to  the  constitutionahty  of  a  work- 
men's compensation  act,  and  it  was  intimated  (at  page  612) 
that  the  decisions  of  a  board  created  by  the  act  would  have  to 
be  enforced  by  judicial  proceedings.  The  following  year  an 
amendment  was  passed^®^  providing  for  a  decree  by  the  superior 
court  based  on  the  decision  of  the  board  in  each  case."*^^    There 

«2See  pp.  115-116  supra. 

*83  People  V.  Martin,  and  People  v.  Orr,  19  Colo.  565.  Cf.  the  quo 
warranto  against  the  lieutenant-governor  in  In  the  matter  of  the  Executive 
Communication,  etc.,  12  Fla.  653. 

*^  See  pp.  38-39  supra. 

*^  St.  1912,  c.  571,  s.  14. 

*«  Per  Rugg,  C.  J.,  in  McNichol's  Case,  215  Mass.  497,  at  502. 


THE  ADVISORY  OPINION  IN  PRACTICE  159 

is  a  single  case  in  Maine  where  the  legislature  adopted  the 
dissenting  opinion  of  one  justice,^^  and  it  appears  that  the 
governor  did  not  follow  the  rules  laid  down  in  Questions  Sub- 
mitted, etc.,  70  Maine,  560,  but  it  is  quite  likely  they  had  not 
yet  reached  him  when  he  took  action.*^® 

A  word  might  be  said  about  the  effect  of  refusals.  As  a 
rule,  when  the  justices  have  declined  to  express  any  opinion 
upon  questions  submitted,  there  has  been  no  official  remon- 
strance from  the  other  departments.  If  the  cause  of  the  objection 
can  be  removed  by  a  rephrasing  of  the  question,  sometimes 
this  is  done,*®®  but  more  often  the  whole  matter  is  dropped. 
There  is  one  notable  exception.  In  1889  the  Massachusetts 
house  of  representatives  asked  the  justices  to  construe  certain 
educational  statutes  "with  a  view  to  further  legislation  on  the 
subject  matter"  thereof.  The  justices  declined  to  do  so  and 
explained  that  the  reference  did  not  disclose  a  "solemn  occa- 
sion." The  reply  was  referred  to  the  judiciary  committee, 
which  made  a  report  of  considerable  length,  contending  that 
it  was  for  the  house  to  determine  the  solemnity  of  the  occasion 
and  that  in  any  case  the  question  was  within  the  precedents. 
Accordingly  the  house,  by  a  vote  of  one  hundred  sixty-eight 
to  eight,  passed  a  resolution  "  that  the  house  of  representatives 
does  not  acquiesce  iu  the  conclusion  of  the  justices  as  to  the 
limitation  of  the  authority  of  the  house  to  require  the  opinions 
of  the  justices;  and  affirms  the  authority  of  the  house  under 
the  constitution  to  require  their  opinions  upon  said  questions.  "*^° 
The  merits  of  both  sides  will  be  considered  at  another  place.*^^ 

♦«'  Opin.  of  the  Justices,  6  Me.  486. 

***  Statement  and  Questions  Submitted,  etc.,  70  Me.  600. 

*•'  In  re  OpLn.  of  the  Justices,  211  Mass.  630,  and  In  re  Opin.  of  the  Jus- 
tices, 211  Mass.  632;  In  the  matter  of  the  Constitutionahty  of  HB.  No.  18, 
9  Colo.  623;  In  re  HB.  No.  165,  15  Colo.  593,  595;  and  In  re  a  Bill  Providing 
that  Eight  Hours  Shall  Constitute  a  Day's  Labor,  21  Colo.  29. 

*'°  HJ.  May  16,  1889.  The  refusal  of  the  judges  is  recorded  in  Func- 
tions of  Judiciary,  148  Mass.  623. 

*"See  pp.  161-77  infra. 


160     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

Similarly  the  Colorado  justices  in  1913  refused  to  answer  ques- 
tions regarding  the  lieutenant-governorship,  for  lack  of  a 
**  solemn  occasion.  "^^^  A  motion  was  made  in  the  senate  that 
that  body  declare  the  occasion  is  solemn  within  the  constitution 
and  again  request  an  answer,  but  this  did  not  come  to  a  vote.*''^ 

*"  In  re  Interrogatories  of  the  Senate,  54  Colo.  166. 
*"SJ.  1913,  308. 


I 


CHAPTER  III 

THE  INTERPRETATION  OF  ADVISORY  OPINION   CLAUSES 

Having  reviewed  the  history  of  the  advisory  opinion  and 
the  scope  and  manner  of  its  application  in  the  United  States, 
we  are  now  in  a  position  to  consider  more  in  detail  the  construc- 
tion that  has  been  given  to  constitutional  clauses  providing 
for  such  opinions,  and  to  attempt  the  formulation  of  certain 
general  rules  which  have  guided  the  justices  in  their  advisory 
practice.  The  material  for  such  an  examination  will  be  foimd, 
for  the  most  part,  in  those  cases  where  an  opinion  on  the  ques- 
tions referred  has  been  refused,  for,  as  a  rule,  the  justices  have 
analyzed  the  clause  critically  only  when  a  doubt  arose  as  to 
their  obUgation  to  comply  with  the  request  made. 

So  it  will  be  in  order,  preliminarily,  to  ascertain  whether  they 
may  ever,  of  right,  decline  to  give  opinions  requested.  On 
principle,  it  would  seem  that  answers  should  be  given,  unless 
the  question  is  indisputably  outside  the  scope  of  the  constitution- 
al requirements,^  except  possibly  when  the  interrogatory  calls 
for  the  determination  of  a  case  then  pending  in  the  courts. 
The  purpose  of  the  provision  is  to  make  the  justices  constitu- 
tional advisers  to  one  or  both  of  the  other  departments  of  the 
government,  in  cases  of  an  especially  difficult  or  serious  nature. 
An  adviser  who  can  withhold  advice  at  his  discretion  must  be 
very  unsatisfactory.  But,  it  is  objected,  since  the  justices 
are  bound  to  answer  only  if  the  question  conforms  to  a  certain 
description,  it  follows  that  they  are  entitled  to  refuse  an  opinion 
if,  in  their  judgment,  the  question  fails  to  meet  the  constitu- 
tional requirements.    This  argument  proceeds  on  the  assump- 

'  E.g.  a  question,  in  Florida,  dealing  with  a  statutory  executive  power. 


162     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

tion  that  this  is  a  proper  case  for  the  exercise  of  judicial  discre- 
tion, that  the  famous  argument  of  Marshall,  C.  J.,  in  Marbury 
V.  Madison  is  applicable — just  as  the  courts  are  bound  to  deter- 
mine for  themselves  whether  an  act  of  congress  which  has  the 
appearance  of  law  is  really  a  law,  having  been  made  in  pursuance 
of  the  constitution,  so  the  justices,  if  not  bound,  are  at  least 
entitled,  to  determine  for  themselves  whether  a  question  sub- 
mitted for  their  opinion  is  within  the  words  of  the  constitution 
governing  such  references.     But,  even  if  we  unreservedly  accept 
the  reasoning  in  Marbury  v.  Madison,  the  two  cases  are  really 
not  at  all  comparable.     In  the  one,  the  courts,  in  the  exercise 
of  the  judicial  functions  imposed  upon  them,  must  necessarily 
determine  what  they  are  going  to  apply  as  the  command  of 
the  sovereign;  they  may  set  up  their  own  standards  or  take  the 
fiat  of  the  legislature.     In  the  other,  the  justices,  acting  extra- 
judicially as  the  constitutional  advisers  of  other  ofiicials,  are 
called  upon  to  give  opinions  which,  as  they  themselves  usually 
admit  and  claim,  can  have  no  effect  judicially,  but  which  those 
other  officials  deem  necessary  and  valuable  advice  to  assist 
them  in  determining  their  course  of  action.     If  the  question 
is  properly  a  judicial  one,  i.e.,  a  question  the  determination  of 
which  would  involve  the  adjudication  of  a  pending  case,  the 
doctrine  of  the  separation  of  powers  is,  perhaps,  a  sufficient 
objection  to  the  giving  of  an  opinion.     But  if  it  is  a  question 
the  answer  to  which  is  essentially  of  interest  only  to  the  interro- 
gator, in  the  exercise  of  executive  and  legislative,  i.e.,  poHtical, 
powers,  why  should  the  giving  of  that  answer  be  in  the  discre- 
tion of  the  advisers?    The  courts  will  not  pass  upon  questions 
of  a  poUtical  nature^  or  attempt  to  control  the  other  departments 
in  the  exercise  of  their  political  power.    It  is  not  quite  clear  that 
the  reference  of  questions  to  the  justices  is  the  exercise  of  a 
political  power,  but  it  would  seem  more  reasonable  so  to  con- 
sider it  in  most  cases,  for  it  is  commonly  a  step  taken  by  the 

2Willoughby,    Const.,  II,   pp.   999   sqq. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  163 

interrogator  as  incidental  to  the  exercise  of  such  power.  In 
any  case,  is  it  not  for  the  interrogator  to  decide  whether  the 
occasion  and  question  are  such  as  to  warrant  his  asking  counsel 
from  his  legal  advisers?  It  is  not  unusual  for  the  executive  or 
legislative  departments  or  officials  thereof,  to  be  given  the  last 
word  in  matters  of  constitutional  construction.^  It  is  no  reply- 
to  point  out  that  if  this  principle  be  admitted,  there  is  no  method 
of  enforcing  constitutional  restrictions  upon  those  departments. 
It  should  be  acknowledged  that  the  sanction  for  such  restrictions 
is  moral  and  poUtical,  not  legal.  A^any  examples  of  such  leges 
imperfectae  might  be  adduced.  Legislatures  are  commonly 
made  the  final  judges  of  the  elections,  returns  and  qualifications 
of  their  members;  yet  special  requirements  for  such  members 
are  imposed  by  the  constitution.  Undoubtedly  no  court 
would  venture  to  review  the  construction  placed  upon  those 
requirements   by   a   legislature. 

If  we  are  to  give  careful  attention  to  the  wording  of  the  con- 
stitutional provision  requiring  advisory  opinions,  possibly  a 
distinction  should  be  made  between  those  States  where  certain 

^"It  follows,  therefore,  that  every  department  of  the  govemment 
and  every  official  of  every  department  may  at  any  time,  when  a  duty  is  to 
be  performed,  be  required  to  pass  upon  a  question  of  constitutional  con- 
struction. Sometimes  the  case  will  be  such  that  the  decision  when  made 
must  from  the  nature  of  things,  be  conclusive  and  subject  to  no  appeal  or 
review,  however  erroneous  it  may  be  in  the  opinion  of  other  departments 
or  other  officers;  but  in  other  cases  the  same  question  may  be  required  to  be 
passed  upon  again  before  the  duty  is  completely  performed.  The  first  of 
these  classes  is  where,  by  the  constitution,  a  particular  question  is  plainly 
addressed  to  the  discretion  or  judgment  of  some  one  department  or  officer, 
so  that  the  interference  of  any  other  department  or  officer,  with  a  view  to 
the  substitution  of  its  own  discretion  or  judgment  in  the  place  of  that  to 
which  the  constitution  has  confided  the  decision,  would  be  impertinent  and 
intrusive.  Under  every  constitution,  cases  of  this  description  are  to  be 
met  with;  and,  though  it  will  sometimes  be  found  difficult  to  classify  them, 
there  can  be  no  doubt,  when  the  case  is  properly  determined  to  be  one  of 
this  character,  that  the  rule  must  prevail  which  makes  the  decision  final.'* 
Cooley,   Constitutional  Limitations,  pp.  54-5. 


164  DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

governmental  organs  or  officials  are  empowered  to  require 
opinions  in  certain  classes  of  cases,^  and  those  States  where  the 
justices  are  charged  with  the  duty  of  giving  opinions  in  certain 
classes  of  cases  ;^  for  it  may  be  argued  that  the  grant  of  a  power, 
not  purely  ministerial,  implies  a  discretion  as  to  the  occasion 
for  the  exercise  of  that  power,  and  the  imposition  of  a  Umited 
duty  similarly  carries  with  it  the  right  to  refuse  performance 
of  the  duty,  if,  in  the  judgment  of  the  person  obhged,  the  hmits 
have  not  been  observed.  However,  this  does  not  get  us  very 
far,  first  because  the  power  and  duty  are  here  interdependent 
and  logically  it  would  result  that  a  discretion  rests  upon  both 
the  questioner  and  the  questioned,  which  practically  means 
that  the  latter  can  answer  or  refuse  at  will;  and  secondly, 
because  this  change  in  wording  (beginning  with  Maine)  is 
apparently  accidental  and  neither  the  legislative  department 
nor  the  executive  department  nor  the  courts  have  rested  any 
weight  upon  it. 

Whether  a  question  will  be  asked  or  not  of  course  rests  in 
the  discretion  of  the  inquirer.  Whether  or  not  a  governmental 
official  is  bound  to  answer  depends  upon  his  obUgations  under 
the  constitution.  Now  if  the  constitution  is  ambiguous,  as 
in  this  case,  the  purpose  of  its  framers  should  determine  the 
extent  of  the  obUgation.  From  an  examination  of  the  historical 
antecedents  as  well  as  the  debates  of  constitutional  conventions, 
we  are  justified  in  concluding  that  the  purpose  of  the  advisory 
opinion  scheme  was  to  secure  to  officials  whose  connection  with 
the  government  is  merely  temporary,  whose  qualifications  for 
deaUng  with  the  difficult  problems  of  political  science  are  often 
meagre  and  whose  ordinary  sources  of  information  are  some- 
times prejudiced  or  inadequate,  the  expert  advice  of  other 
officials  upon  questions  with  which  they  are  especially  compe- 
tent to  deal  thoroughly  and  without  prejudice.    It  would  seem 

*  Massachusetts,  New  Hampshire,   Florida,  and  South  Dakota. 
6  Maine,    Rhode   Island,    Missouri,   and   Colorado. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  165 

to  follow  that  the  only  admissible  reasons  for  declining  a  re- 
quest for  such  advice  are  that  the  request  did  not  come  from  an 
authorized  source,  or  that  the  question  is  plainly,  and  not  as  a 
matter  of  judicial  construction  as  opposed  to  executive  or 
legislative  construction,  not  within  the  intent  of  the  words  of 
the  constitution,®  or  that  an  answer  would  be  inconsistent  with 
the  chief  duties  of  the  adviser.' 

This  conclusion  is  fortified  by  the  history  of  extra-judicial 
advice  in  England.  It  has  already  been  pointed  out*  that  in 
the  eighteenth  century  the  king  as  well  as  the  House  of  Lords 
had  an  unquestionable  right  to  the  counsel  of  the  judges,  not 
only  in  the  exercise  of  judicial  functions,  but  in  the  exercise 
of  executive  and  legislative  functions,  unless  the  giving  of  such 
counsel  entailed  passing  upon  a  particular  case  then  pending.^ 
The  desuetude  of  this  practice  in  the  nineteenth  century,  at 
least  as  far  as  the  executive  is  concerned,  is  probably  due  to 

*  See  note  1,  p.   161  supra. 

''  "Quando  aliquid  mandatur,  mandatur  est  omne  per  quod  parveni- 
tur  ad  illud.  A  special  authority  is  granted.  A  prerogative  would  be 
null  unless  it  carried  with  it  the  proper  discretion  to  exercise  it.  The 
power  to  demand  necessarily  implies  the  right  to  a  reply.  For  whenever 
there  is  authority  on  the  one  hand,  there  must  be  a  corresponding  duty 
upon  the  other.  There  is  a  well  defined  distinction  between  a  judge  acting 
juridically,  and  a  judge  acting  in  the  capacity  of  an  ad\dser.  The  former 
adjudicates,  settles  and  decides;  the  latter  gives  an  opinion  upon  questions 
propounded;  he  throws  upon  them  the  light  of  his  learning.  .  .  .  The  true 
construction  of  the  provision  requiring  the  judges  to  answer,  according  to 
the  weight  of  reason  and  authorities,  would  seem  to  be  that  the  judges  are 
always  obliged  to  answer  except  when  the  same  matter  is  actually  pending 
before  them  juridically.  To  require  them  to  answer  when  they  are  actually 
called  on  as  judges,  acting  juridically,  would  interfere  with  the  independ- 
ence of  the  judiciary."  H.  A.  Dubuque,  in  Am.  L.  Rev.,  XXIV,  p.  369, 
at  pp.  396-7. 

«See  pp.  6,   16,  22  and  27,  stipra. 

*See  especially  the  opinions  of  the  majority  of  the  judges  and  the 
opinions  of  the  Lords  in  McNaghten's  Case — 10  CI.  and  Fin.  200 — and 
the  opinion  of  the  Judicial  Committee  in  Attorney-General  for  Ontario 
v.  Attorney-General  for  Canada— (1912)  A.  C.  571. 


166  DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

the  creation  of  the  Judicial  Committee  of  the  Privy  Council, 
which  is  bound  to  advise  the  king  on  any  question  whatsoever, 
upon  request.^''  The  comprehensiveness  of  this  statutory  obli- 
gation is  itself  not  negligible  evidence  of  the  extent  of  the  obli- 
gation resting  upon  the  king's  councillors  (including  the  judges) 
under  the  unwritten  constitution. 

On  the  other  hand,  it  must  be  admitted  that  in  the  United 
States  there  is  considerable  authority  for  the  right  of  the  justices 
to  refuse  their  opinions  at  their  discretion,  on  various  grounds. 
The  early  New  England  practice  is  not  essentially  discrepant 
with  the  principles  developed  above.  Thus  in  Massachusetts, 
when  questions  were  put  which  were  intimately  connected  with 
private  interests,  though  the  judges  were  reluctant  to  express 
an  opinion,  yet  apparently  they  felt  bound  to  do  so  under  the 
constitution.^^  In  one  case,^^  they  seriously  considered  "whether 
it  might  not  be  expedient  first  to  submit  to  the  consideration 
of  the  Honorable  House,  whether  it  would  be  expedient  to 
request  an  ex  parte  opinion  in  such  a  case;"  but  concluded  that 
since  the  opinion  would  not  bind  anyone  and  so  could  not  affect 
the  rights  of  the  parties,  "should  they  hereafter  be  brought 
before  the  court  in  a  regular  course  of  judicial  proceeding," 
an  answer  might  be  given.  Justice  Story,  in  speaking  to  the 
constitutional  convention  of  1820,  said  that  "as  the  constitution 
now  stands,  the  judges  are  bound  to  give  their  opinions  if  insisted 
upon,  even  in  a  case  where  private  rights  are  involved."^ 
Ex- Justice  Morton  took  the  same  position  in  the  convention 
of  1853.^*  So,  too,  in  New  Hampshire,  the  justices  felt  obUged 
to  attempt  an  answer  to  a  question  to  which  great  difficulty 

*"  3-4  Wm.  IV,  c.  41,  s.  4,  and  cf.  Macqueen,  House  of  Lords,  p.  689  n., 
and  In  re  Schlumberger — 9  Mo.  P.  C.  1. 

^^Opin.  of  the  Justices,  7  Pick.  125,  130  n.;  Opin.  of  the  Justices,  5 
Mete.  596;  and  Opin.  of  the  Justices,  9  Cush.  604. 

"Opin.  of  the  Justices,  5  Mete.  596. 

^3  Deb.  Mass.  Conv.   1820,  p.  489. 

i*Deb.  Mass.   Conv.   1853,  II,  p.   694. 


I 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  167 

attached  because  of  its  very  general  nature.^^  Again,  in  Maine, 
as  late  as  1870,  opinions  were  given  in  a  particular  case  of  an 
altogether  private  nature,  which  was  all  but  pending  before  the 
court,  since  the  individual  concerned  was  free  to  appeal  from 
the  conviction  and  sentence  of  the  lower  court.^®  Only  one 
justice  (Kent,  J.)  enters  a  serious  objection  to  answering,  and 
though  he  points  out  clearly  the  necessary  and  reasonable 
Umitation  upon  the  advisory  opinion  power  under  the  constitu- 
tion,^^ he  is  consoled  for  the  "unfortunate  precedent"  by  the 
fact  that  his  opinion  favors  the  prisoner  and  "  cannot  have  any 
authoritative  force  in  any  possible  future  proceedings  in  the 
case." 

It  was  only  seven  years  later  that  the  Massachusetts  jus- 
tices were  responsible  for  an  opinion^^  which  may,  perhaps, 
be  called  the  fountain-head  of  nearly  a  score  of  refusals  on  the 
part  of  justices  in  Massachusetts,  New  Hampshire  and  Maine, 
to  act  as  advisers  of  the  other  departments.^^  Two  questions 
were  referred  to  them  by  the  house  of  representatives:  (1) 
Is  a  special  justice  of  a  mimicipal,  district  or  poUce  court  ineli- 
gible to  the  house  of  representatives  under  Amendment  VIII 
of  the  constitution?  (2)  If  so,  does  acceptance  of  the  legislative 
vacate  the  judicial  ofl&ce?  The  justices  pointed  out  that  their 
opinions  could  only  be  required  upon  "important  questions  of 
law  and  upon  solemn  occasions,"  and  declared  in  effect  that  an 
occasion  could  not  be  solemn  unless  the  body  making  the  inquiry 

^sQpin.  of  the  Justices,  etc.,  25  N.  H.  537. 

"State   V.    Cleveland,    58    Me.,    564. 

""WTien  a  compliance  would  violate  distinctly  and  palpably  some 
other  constitutional  provision,  made  for  the  protection  of  individual  rights 
or  involve  a  pre-judgment  of  a  pending  case,  by  opinions  on  the  points 
in  issue,  a  conscientious  judge  may  well  hesitate  or  even  decline  answering. " 

^^Opin.   of   the   Justices,    122   Mass.   600. 

^'  The  Missouri  refusals,  based  on  a  large  discretionary  power  in  the 
justices,  had  preceded  this,  but  there  is  no  evidence  that  the  Massachusetts 
justices  had  seen  them  and  there  is  not  a  single  reference  to  them  in  the 
New  England  opinions  cited  below. 


168     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

had  occasion  to  consider  the  question  "in  the  exercise  of  the 
legislative  or  executive  powers, "  as  the  case  might  be.  In  this 
particular  case  the  question  asked  could  not  be  affected  by 
legislative  action,  and  might  come  before  the  court  in  a  regular 
judicial  proceeding  at  any  time;  so  an  opinion  should  be  refused. 
We  are  not  concerned  here  with  the  vaUdity  of  these  reasons 
for  refusaP^  so  much  as  with  the  fact  that  the  justices  here 
assumed  the  right  to  pass  finally  upon  the  solemnity  of  the 
occasion.  For  this  assumption  there  is  practically  no  attempt 
at  justification.  The  only  argument  is  based  on  a  hypothetical 
intention  ascribed  to  the  framers  of  the  constitution,  supposedly 
necessitated  by  the  principle  of  separation  of  powers.^^  It  is 
true  that  the  members  of  the  constitutional  convention  of  1780 
were  firm  adherents  to  this  principle,  but  it  is  equally  true  that 
the  separation  of  powers,  as  that  phrase  is  understood  in  the 
poHtical  theory  of  the  United  States,  is  not  affected  in  the 
slightest  by  the  advisory  opinion. 

As  this  argument  has  been  relied  upon  in  a  good  many 
opinions,  it  will  be  worth  while  to  examine  its  cogency  at  this 
point.  That  fundamental  principle  of  our  constitutional  organi- 
zation known  as  the  separation  of  powers  requires  that  legisla- 
tive, executive  and  judicial  functions  shall,  for  the  most  part, 
be  exercised  by  separate  and  independent  organs  of  the  state. 
"The  difference  between  the  departments  undoubtedly  is,  that 
the  legislature  makes,  the  executive  executes,  and  the  judiciary 
construes,  the  law."^^    "It  is  the  province  of  judicial  power  .  . . 

'20  See  pp.   181-205,   208-214  in^ra. 

2^  "In  view  of  the  separation,  established  by  the  Constitution,  between 
the  legislative,  executive  and  judicial  departments  of  the  government, 
we  can  hardly  suppose  it  to  have  been  the  intention  that  either  the  legislature 
or  the  executive  should  demand  of  the  judiciary  its  opinion,  in  advance, 
upon  a  question  which  may  arise  in  the  course  of  judicial  administration, 
and  which  cannot  be  affected  by  legislative  or  executive  action."  Opin. 
of  the  Justices,  122  Mass.  600. 

22  per  Marshall,  C.  J.,  in  Wayman  v.  Southard,  10  Wheat.  46. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  169 

to  decide  private  disputes  between  or  concerning  persons."^ 
The  purpose  of  this  separation  should  be  kept  in  mind,  viz., 
that  the  judiciary,  secure  in  tenure  and  compensation  from 
possible  encroachments  by  the  other  departments,  might  apply 
the  law  according  to  their  best  judgment,  free  from  the  pressure 
of  political  and  expediential  arguments.^  Now  it  is  well  known 
that  in  our  system  there  is  considerable  over-lapping  of  powers. 
"The  correct  statement  is  that  a  department  may  constitution- 
ally exercise  any  power,  whatever  its  essential  nature,  which 
has,  by  the  Constitution,  been  delegated  to  it,  but  that  it  may 
not  exercise  powers  not  so  constitutionally  granted,  which, 
from  their  essential  nature,  do  not  fall  within  its  division  of 
governmental  functions,  imless  such  powers  are  properly  inci- 
dental to  the  performance  by  it  of  its  own  appropriate  func- 
tions. "^^ 

There  are  several  answers,  then,  which  might  be  made  to 
the  argument  of  the  Massachusetts  justices.  First  of  all,  the 
giving  of  advisory  opinions  is  not  a  judicial  function;  such 
opinions  are  extra-judicial  in  character,  and,  as  they  bind  no 
one,  it  is  difficult  to  see  how  they  can  interfere  with  the  exercise 
of  judicial  power  as  defined  above,  unless  given  in  a  pending 
case.  Secondly,  even  if  advisory  opinions  be  considered  as  an 
interference  with  the  legislative  or  executive  departments, . 
i.e.,  as  an  exercise  of  legislative  or  executive  power,  there  is  no 
serious  violation  of  the  principle  of  separation  of  powers,  which 
was  put  forward  to  protect  the  judiciary,  not  the  executive  or 
legislature.  But,  as  a  matter  of  fact,  such  interference  is  insigni- 
ficant, since  the  justices  proffer  their  advice  only  when  it  is 

23  MerriU  v.  Sherburne,  1  N.  H.  199,  at  203.  Cf.  "To  hear  and  decide 
adversary  suits  at  law  and  in  equity,  with  the  power  of  rendering  judgments 
and  entering  up  decrees  according  to  the  decision,  to  be  executed  by  the 
process  and  power  of  the  tribunal  deciding,  or  of  another  tribunal  acting 
under  its  orders  and  according  to  its  direction,  is  the  exercise  of  judicial 
power,  m  the  constitutional  sense."    Taylor  v.  Place,  4  R.  I.  324. 

2*  The  FederaUst,  No.  LXXVIH. 

»Willoughby,   Constitution,   II,  p.   1263. 


170     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

requested,  and  the  other  two  departments  may  give  as  much 
or  as  Httle  attention  to  it,  even  then,  as  they  please.  Lastly, 
even  if  the  rendering  of  advisory  opinions  could  be  considered 
as  a  judicial  function,  it  is  obvious  that  its  effect  on  the  inde- 
pendence of  judicial  tenure  must  be  remote.  It  seems  reasonable 
to  conclude  that  there  is  no  real  irreconcilability  between  the 
separation  of  powers  and  the  advisory  opinion. 

Notwithstanding  the  weakness  of  the  reasoning  in  Opinion 
of  the  Justices,  122  Massachusetts,  600,  a  bad  precedent  had 
been  established,  and  one  which  unfortunately  found  no  little 
favor.  The  argument  was  plausible  superficially,  and  furnished 
a  means  of  escape  from  a  duty  often  burdensome  and  sometimes 
disagreeable.  The  principle  was  again  enunciated,  obiter,  by 
the  same  justices  in  1878,^^  and  was  adopted  and  applied  by  an 
almost  entirely  different  group  in  1889.^7  This  time  the  house 
of  representatives  placed  upon  its  journal  a  formal  protest,^^ 
denying  the  right  of  the  justices  to  place  such  limitations  upon 
questions  referred  for  advisory  opinions.  The  case  attracted 
considerable  attention  at  the  time  and  the  action  of  the  house 
was  generally  endorsed.^^  But  the  justices  had  crossed  the 
Rubicon,  and  at  the  first  opportunity,  they  stated  their  position 
quite  explicitly.  "In  determining  whether  questions  are  in- 
cluded in  it  (the  clause),  the  rights  and  duties  of  the  house 
and  of  the  justices  are  co-ordinate  and  reciprocal.  The  house 
is  undoubtedly  authorized  to  require  an  opinion  on  all  such 
questions  as  it  deems  to  be  embraced  in  the  constitutional 
provision,  but  it  must  be  for  the  justices  to  determine  whether 
the  requirement  thus  made  is  in  conformity  therewith,  and  one 
which  they  are  bound  to  obey.  .  .  We  must  for  ourselves  finally 
decide  whether  the  occasion  contemplated  by  the  constitution 

2«  Opin.  of  the  Justices,  126  Mass.  557. 

"  Functioni  of  Judiciary,  148  Mass.  623. 

2*  See  p.  159  supra  and  cf.  the  attitude  of  the  House  of  Lords  in  a  case 
cited  by  Macqueen — see  page  27  supra. 

29  Cf.  Albany  L.  Jour.  XL,  p.  158;  Cent.  L.  Jour.  XXVIII,  p.  493; 
Am.  L.  Rev.  XXIV,  p.  369,  at  pp.  385  sqq.;  Harv.  L.  Rev.  Ill,  pp  228-9. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  171 

in  which  our  opinion  may  properly  be  required  has  arisen."^** 
This  precedent  has  been  followed  in  cases  of  more  recent  date^^ 
and  seems  firmly  rooted  in  the  Massachusetts  practice. 

The  justices  of  other  States  were  not  slow  to  take  it  over 
and  attempt  to  facilitate  its  development.  As  early  as  1881 
we  find  two  Maine  justices  indicating  their  approval  of  Opinion 
of  the  Justices,  122  Massachusetts,  600,  and  testing  the  solem- 
nity of  an  occasion  by  an  arbitrary  standard  of  their  own.'^ 
They  soon  won  over  the  rest  to  their  way  of  thinking,^  and 
in  1901  the  majority  declared  in  unequivocal  terms  their  right 
to  decline  an  answer  if  they  deem  the  solemnity  of  the  occasion 
insufficient.^  Three  justices  (Emery,  Whitehouse  and  Peabody, 
JJ.)  'submitted  a  forceful  dissenting  opinion  in  which  they 
held  that  the  advisory  opinion  clause  was  mandatory  and  left 
nothing  to  the  discretion  of  the  judges.  (They  also  questioned 
the  criteria  applied,  even  if  the  right  to  refuse  an  opinion  be 
admitted).  Six  years  later  (one  of  the  dissenters  having  be- 
come chief  justice  meanwhile)  they  carried  the  court  with  them 
in  giving  an  opinion^^  on  a  question  referred  under  the  very 
circumstances  which  were  responsible  for  the  refusal  of  Opin.s 
of  the  Justices,  95  Maine,  564.  Of  the  other  two  judges  who 
had  participated  in  this  latter  refusal,  Strout,  J.,  had  apparently 

3"  In  re  Power  of  Legislature  to  Require  Opinion,  150  Mass.  598, 
^^  In  re  Opin.  of  the  Justices,  190  Mass.,  611;  and  In  re  Opin.  of  the 
Justices,  217  Mass.,  607. 

32  Question  Submitted,  etc.,  72  Mame,  542. 

33  Question  Submitted,  etc.,  85  Me.  545. 

3*  "It  is  .  .  .  essential,  in  order  that  the  justices  be  required  to  give  their 
opinion,  that  the  questions  be  submitted  upon  a  solemn  occasion;  and, 
however  important  may  be  the  questions  of  law  submitted,  if  it  clearly 
appears  to  the  justices  that  such  an  occasion  does  not  exist,  it  is  their  duty 
to  decline  to  give  their  opinion  in  answer  to  such  questions.  .  .  The  justices 
must  determine,  each  undoubtedly  for  himself,  whether  or  not  that  con- 
dition existed,  although  in  cases  of  doubt,  it  may  be  the  duty  of  the  justices 
to  resolve  that  doubt  in  favor  of  the  prerogative  of  the  body  propounding 
the  question."     Opin.s  of  the  Justices,  95  Me.  564. 

35  In  re  Opin.  of  the  Justice<^,  103  Me.  506. 


172      DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

changed  his  mind,  and  Savage,  J.,  registered  the  solitary  pro- 
test. Savage  has  since  become  chief  justice,  but  no  questions 
have  been  submitted  by  the  legislature  of  late,  and  it  is  difficult 
to  say  whether  the  justices  as  a  whole  would  follow  the  most 
recent  precedent^^  or  not. 

In  New  Hampshire,  too,  there  is  evidence,  that,  at  least 
from  1879,  the  judges  entertained  the  opinion  that  they  had 
considerable  discretion  in  refusing  advice  to  the  other  depart- 
ments. The  unsatisfactory  refusal  of  Opinion  of  the  Court, 
58  New  Hampshire,  623,  has  already  been  criticised."  The 
importance  of  the  question  asked  is  weighed  in  Opinion  of  the 
Court,  60  New  Hampshire,  585,  though  the  doubt  is  resolved 
in  favor  of  the  legislature.  But  in  Opinion  of  the  Justices,  67 
New  Hampshire,  601,  (1892),  there  is  a  clear  application  of 
one  of  the  tests  announced  in  Opinion  of  the  Justices,  122 
Massachusetts,  600,^^  resulting  in  a  refusal.  This  test  is  quoted 
with  approval  in  several  later  cases^^  and  has  evoked  no  dissent. 
However,  there  has  been,  in  New  Hampshire,  no  claim  of 
a  right  to  refuse  opinions  as  comprehensive  as  in  In  re  Power 
of  Legislature  to  Require  Opinion,  150  Massachusetts,  598,  or 
Opinions  of  the  Justices,  95  Maine,  564. 

The  Rhode  Island  justices  have  never  given  any  indication 
of  a  disposition  to  withhold  desired  advice,  except  in  connection 
with  a  pending  case,^^  but  it  must  be  remembered  that  the  con- 
stitution in  that  State  says  "any  question  of  law,"  and  so  leaves 

^In  re  Opin-  of  the  Justices,  103  Me.  506. 

"  See  p.  113   supra. 

^^  "The  constitution  introduces  an  exception  to  the  rule  in  some  cases, 
in  which  the  official  power  or  ofl&cial  duty  of  the  senate,  the  house  of  repre- 
sentatives or  the  governor  and  council  is  doubtful,  and  in  which  the  opinions 
of  the  justices  are  desired  by  one  of  those  bodies  upon  an  important  question 
of  law  necessary  to  be  determined  by  the  body  requiring  the  opinions." 
Opin.  of  the  Justices,  67  N.  H.  601. 

39  In  re  Opin.  of  the  Justices,  73  N.  H.  621;  In  re  Opin.  of  the  Justices, 
75  N.  H.  613;  and  In  re  Opin.  of  the  Justices,  76  N.  H.  597. 

^''Opin.  of  the  Supreme  Court,  3  R.  I.  299. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  173 

very  little  opportunity  for  a  difference  of  opinion  as  between 
questioners  and  questioned. 

It  is  possible  that  the  ultimate  cause  of  the  judicial  recal- 
citrancy in  New  England  is  to  be  found  in  the  Missouri  practice, 
which  was  in  its  final  form  before  Opinion  of  the  Justices,  122 
Massachusetts,  bOO."*^  In  Advisory  Constitutional  Opinion  of 
the  Judges,  etc.,  37  Missouri,  135,  the  judges  laid  down  general 
rules  for  interrogatories  under  the  new  advisory  opinion  clause 
and  declared,  inter  alia,  that  "  the  judges  must  determine  what 
are  'questions  of  Constitutional  law,'  and  what  are  *solenm 
occasions'  within  the  meaning  of  this  section,"  and  that  "it 
must  have  been  understood  by  the  framers  of  (the  constitution), 
and  would  seem  to  be  the  clear  intent  of  the  section  as  it  reads, 
that  such  questions  should  be  important  in  reference  to  the 
public  interest,  and  the  necessary  and  immediate  action  of  the 
Legislative  or  Executive  branch  of  the  Government,  upon 
some  matter  of  unusual  magnitude  and  solemn  concern  for  the 
public  good,  and  on  a  pure  question  of  law  which  could  only  be 
finally  determined  by  the  Supreme  Court  as  a  judicial  question. " 
The  first  of  these  principles  is  an  unsupported  usurpation  of 
discretion,  the  second  rests  only  upon  the  unsubstantial  fabric 
of  a  guess.  Yet  they  are  without  doubt  authoritative  as  to 
the  Missouri  practice,  and  were  in  fact  the  death-blow  of  the 
advisory  opinion  in  that  State.  They  were  expressly  reaffirmed 
in  In  the  matter  of  the  Northern  Missouri  Railroad,  51  Missouri, 
586,  and  Opinion  of  the  Court,  etc.,  55  Missouri,  497. 

The  original  wording  of  the  advisory  opinion  clause  in 
Florida  left  no  doubt  as  to  its  mandatory  character,  and  the 
only  construction  possible  was  frankly  set  forth  in  the  second  case 
under  the  provision.  "It  is  evident  from  the  language  used 
that  there  is  a  discretion  vested  in  the  Governor  as  to  requiring 
opinions,  and  it  is  equally  plain  that  there  is  no  discretion  in 
the  court,  if  the  opinion  required  involves,  upon  a  given  state 
of  facts,  an  interpretation  of  any  portion  of  the  Constitution 

"But  cf.  note  19  on  p.  167  supra. 


174  DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

or  the  expression  of  an  opinion  upon  any  point  of  law."^  In 
the  next  case,  too,  they  yielded  with  great  reluctance  to  the 
imperative  requirement  of  the  constitution.^  In  fact,  until 
the  amendment  of  1875,  there  is  no  suggestion  of  a  right  to 
refuse  answers,  unless  the  questions  come  from  an  unauthorized 
source."*^  But  after  the  clause  was  changed,  the  judges  were 
only  too  glad  to  avail  themselves  of  the  undoubted  right  to 
decHne  advice  when  the  inquiries  did  not  bear  upon  executive 
powers  and  duties,  under  the  constitution',  and  beginning  with 
In  re  Executive  Communication,  etc.,  23  Florida  297,  there  are 
nine  refusals  out  of  a  total  of  twenty-four  references.  These 
refusals,  it  should  be  pointed  out,  are  not  at  all  comparable  to 
those  we  have  been  discussing,  in  Massachusetts,  Maine  and 
Missouri.  What  is  an  executive  power  or  duty,  and  whether 
that  power  or  duty  is  constitutional  or  statutory  are,  as  a  rule, 
questions  of  fact,  more  or  less  susceptible  of  absolute  deter- 
mination; the  importance  of  a  question  and  the  solemnity  of 
an  occasion  are  relative  matters,  to  be  estimated  in  particular 
cases  according  to  the  attendant  circumstances,  and  largely 
depending  upon  individual  judgment. 

In  Colorado,  the  first  refusal  was  due  to  the  fact  that  the 
matters  referred  were  then  before  the  courts  in  Utigated  cases, 
as  well  as  to  the  physical  impossibiUty  of  answering  questions 
of  such  generality  as  those  submitted  in  the  time  available.*^ 

*2  per  Westcott,  J.,  in  In  the  matter  of  the  Executive  Communication, 
etc.,  12  Florida,  653. 

^  "Protesting  that  the  questions  involved  in  the  inquiry  are  not  matters 
of  judicial  cognizance,  and  that  the  'opinion'  of  this  court  is  binding  upon 
no  person,  the  matter  being  purely  of  legislative  interpretation  and  adjudica- 
cation,  yet  because  the  Constitution  requires  the  court  to  give  opinions 
'upon  any  point  of  law,'  when  required  by  the  Governor,  we  are  constrained 
to  comply  with  the  requirement  of  the  Constitution."  In  the  matter  of  the 
Executive  Communication,  etc.,  12  Fla.  686. 

^  In  the  matter  of  the  Executive  Communication,  etc.,  12  Fla.  653; 
and  In  the  matter  of  the  Executive  Communication,  etc.,  14  Fla.  289. 

*^  In  the  matter  of  Senate  Resolution  on  the  Subject  of  Irrigation,  9 
Colo.  620. 


INTERPRETATION  OF  AD\r[SORY  OPINION  CLAUSES  175 

It  is  also  suggested  that  replies  might  be  refused  when  the  subject 
matter  of  the  inquiries  is  not  covered  by  any  pending  bill; 
and  this  is  cited  with  approval  in  a  case  of  1889,^  where  the 
court  assumes  *'that  were  such  not  the  fact,  the  resolution 
would  not  be  presented."  This  smacks  of  the  Missouri  doc- 
trine, and  in  the  District  Attorneys  case  reported  in  12  Colorado, 
466,*^  the  theory  of  judicial  discretion  in  its  most  positive 
form  is  Unhesitatingly  proclaimed,  on  the  authority  of  Opinion 
of  the  Court  in  Response  to  Governor,  49  Missouri,  216.  Fur- 
thermore, the  court  is  not  content  with  this,  but  proceeds,  in 
the  exercise  of  that  discretion,  \o  work  out  a  very  elaborate 
exegesis  of  the  advisory  opinion  clause,  valuable  and  instructive 
in  many  respects,  but  going  considerably  beyond  the  needs  of 
the  principal  case.  This  opinion  has  been  unquaUfiedly  af>- 
proved  in  many  more  recent  cases^^  and  must  be  accepted  as 
indicating  the  prevaihng  practice  in  Colorado.  It  is  probably 
responsible  for  the  growth  of  a  larger  number  of  eUmination 
tests  than  can  be  found  in  any  other  State,  as  will  be  seen  in 
examining  the  special  rules  listed  below.  Only  once  has  a 
judicial  voice  been  raised  against  the  doctrine,  in  Colorado; 
in  1913,  Scott,  J.,  argued  with  great  assurance,  that  to  permit 
the  court  to  pass  finally  upon  the  importance  of  a  question  or 
the  solemnity  of  an  occasion  defeated  the  intention  of  the 
constitution.'^^ 

The  restricted  form  of  the  advisory  opinion  in  South  Dakota 
has  given  less  opportunity  for  the  development  of  the  doctrine 
we  are  discussing.  Yet  "important  question"  and  "solemn 
occasion"  figure  therein;  and  the  doctrine  at  last  appears ^ 

**  In  re  Senate  Resolution  Relating  to  Internal  Improvement  Fund , 
etc.,  12  Colo.  285. 

*'  In  the  matter  of  the  Constitutionality  of  SB.  No.  65,  12  Colo.  466. 

*'In  re  Appropriations  by  General  Assembly,  13  Colo.  316;  In  re 
Speakership  of  the  House  of  Representatives,  15  Colo.  520;  In  re  HR.  No. 
25,  15  Colo.  602;  In  re  University  Fund,  18  Colo.  398;  In  re  Penitentiary 
Commissioners,    19   Colo.   409;   et  al. 

♦■  In  re  Interrogatories  of  the  Senate,  54  Colo.  166. 


176     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

ushered  in  on  the  authority  of  In  the  matter  of  the  Constitu- 
tionaUty  of  SB.  No.  65,  12  Colorado,  466. ^^  Later  cases  lend 
their  support^^ — and  there  has  been  only  one  reference  since  1900. 

We  must  admit,  then,  that  this  unhistorical  and  irrational 
principle  has  estabUshed  itself  firmly  in  most  of  the  States 
where  the  advisory  opinion  exists.  It  will  be  clear  from  the 
foregoing  paragraphs  that  there  have  been  two  foci  of  infection, 
so  to  speak,  the  opinion  in  122  Massachusetts,  600,  for  Massa- 
chusetts, Maine  and  New  Hampshire,  that  of  37  Missouri,  135, 
for  Colorado  and  South  Dakota.  For  reasons  set  forth  above, 
it  is  submitted  that  the  arguments  in  both  cases  are  fallacious 
and  lack  the  merit  that  should  characterize  precedents  which 
take  rank  as  leading  cases.  There  is  evidence  that  this  has  been 
recognized  both  in  Maine  and  in  Colorado  (if  only  by  a  sohtary 
justice),  and  it  is  to  be  hoped  that  judges  will  remember  that 
the  rule  of  stare  decisis  is  less  conclusive  in  constitutional  mat- 
ters, when  it  is  manifest  that  a  previous  construction  is  incor- 
rect,^2  a^j^(j  ^jH  yg^  return  to  a  better  usage.  Otherwise  the 
process  of  constitutional  amendment  alone  can  maintain  the 
usefulness  of  the  advisory  opinion. 

In  the  absence  of  constitutional  requirement,  there  is  no 
reason  to  suppose  that  judges  cannot  refuse  to  advise  the  other 
departments  of  our  State  governments,  if  they  so  desire.  There 
are  many  examples  where  such  advice  has  been  given,  it  is  true, 
but  never  with  any  acknowledgment  of  obligation;  and  there 
are  also  numerous  instances  of  flat  refusals,  sometimes  accom- 
panied by  a  wholesale  denial  of  an  obhgation  to  reply  under  any 
circumstances.  It  is  obvious,  too,  that  in  a  system  where 
the  composition  and  powers  of  the  judiciary  are  not  within  the 
control  of  the  legislature,  a  statutory  provision  for  advisory 

60  In  re  Ch.  6,  Sess.  L.  1890,  8  S.  D.  274. 

"  In  re  House  Resolution  No.  30,  10  S.  D.  249;  and  In  re  Opin.  oi  the 
Judges,  34  S.  D.  650. 

^^Willoughby,  Const.,  I,  pp.  51-2,  and  Baldwin,  Amer.  Judiciary,  pp. 
57,  60,  and  cases  cited  there. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  177 

opinions  can  have  no  more  weight  than  a  request  supported 
only  by  legislative  resolution.  The  more  recent  cases  indicate 
that  while  the  judges  are  probably^  free  to  comply  with  such 
requests,  even  in  the  absence  of  constitutional  requirement, 
still  there  is  a  strong  tendency  to  decUne.^  Even  in  Canada, 
where  the  supreme  court  is  the  creature  of  the  legislature,  there 
has  been  a  pronounced  incHnation  to  refuse  opinions  occasional- 
ly,^ on  the  ground  that  the  questions  referred  were  not  within 
the  statute;  but  here,  the  refusals  have  caused  little  incon- 
venience, for  the  legislature  has  prqmptly  amended  and  expanded 
the  statute  to  meet  difficulties  that  have  arisen.  In  only  one 
case  has  it  been  seriously  argued  that  the  imposition  of  advisory 
duties  was  ultra  vires  of  the  legislature,^  and  the  decision  of  the 
Privy  Council  in  favor  of  the  statute^^  has  probably  settled  the 
matter. 

We  are  now  prepared  to  attempt  a  codification,  as  it  were, 
of  the  law  relating  to  advisory  opinions  as  it  is  found  in  the  prac- 
tice of  those  States  where  such  opinions  are  required  under 
the  constitution.     It  will  be  our  endeavor  to  formulate  the 

"  See  p.  78  supra. 

5*  In  re  Board  of  Sinking  Fund  Commissioners,  32  S.  W.  414  (Ky,); 
In  re  Board  of  Purchase  and  Supplies,  etc.,  37  Nebr.  425;  Cataract  Power 
Co.  V.  Buffalo,  115  N.  Y.  Supp.  1045;  and  State  v.  Baughman,  38  Ohio 
St.  455.  Cf.  the  words  of  Thayer  (Legal  Essays,  p.  182,  at  185),  written 
in  1895 :  "To  say  that  a  court  is  not  obUged  to  answer,  and  cannot  be  obliged 
to  answer  by  the  action  of  the  other  departments,  is  not  to  say  that  they 
cannot  answer  if  they  see  fit.  .  .  .  It  seems  clear  that  the  judges  may 
answer  if  they  choose  to.  The  precedents  .  .  .  indicate  only  that  they  need 
not  if  they  do  not  choose;  and,  perhaps  also,  that  it  is  generally  inex- 
pedient to  answer  when  not  required  by  the  constitution." 

« In  re  Certain  Statutes  of  .  .  .  Manitoba,  etc.,  22  Can.  S.  C.  R.  577; 
In  the  matter  of  the  Jurisdiction  of  a  Province,  etc.,  35  Can.  S.  C.  R. 
581 ;  and  In  re  Criminal  Code,  43  Can.  S.  C.  R.  434. 

^'  In  re  References  by  the  Governor  General  in  Coimcil,  43  Can,  S.  C. 
R.  536. 

"  Attorney-General  for  Ontario  v.  Attorney-General  for  Canada, 
(1912)   A.    C.   571. 


178     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

rules  established  by  that  practice  generally,  as  far  as  possible, 
indicating  in  each  case  the  historical  development;  but  special 
explanations  will  be  necessary  in  many  instances  to  define  the 
extent  of  a  rule's  application  in  particular  States,  and  illustra- 
tions from  the  English  practice  or  extra-constitutional  opinions 
will  sometimes  throw  a  clearer  light  on  the  point  under  dis- 
cussion. 

1.  The  justices  are  under  no  obligation  to  give  extra-judicial 
opinions  to  an  individual  or  governmental  organ  not  authorized 
to  require  them  by  the  constitution. 

There  are  two  general  classes  of  cases  where  this  rule  is 
applied.  The  first  is  where  the  constitution  contains  an  advisory 
opinion  clause,  but  the  request  in  question  does  not  come  from  a 
source  named  in  that  clause.  These  cases  are  all  interrogatories 
from  the  executive  department.  In  the  beginning,  the  justices 
have  sometimes  waived  the  lack  of  authority,  falling  back  upon 
the  exact  words  of  the  constitution  only  in  recent  years,  as  their 
attitude  has  become  more  critical.  Thus  in  Massachusetts, 
though  the  constitution  authorized  questions  only  from  "each 
branch  of  the  legislature,  as  well  as  the  governor  and  council," 
the  justices  unquestioningly  gave  advice  on  several  occasions 
to  the  governor  alone,^^  and  once,  semble,  to  the  council.^^  But 
in  1912  they  suggested  that  there  were  grave  doubts  as  to 
whether  either  the  governor  or  council  could  require  advisory 
opinions,^^  and  the  following  year  the  point  was  carefully  con- 
sidered and  the  governor  was  told  that  no  answer  could  be 
given  unless  the  council  joined  with  him  in  making  the  refer- 
ence.^^   Without  doubt  the  same  principle  would  now  be  applied 

^*Opin.  of  the  Justices,  3  Mass.  568;  Opin.  of  the  Justices,  22  Pick. 
571;  Opin.  of  the  Justices,  11  Cush.  604;  In  re  Opin.  of  the  Justices,  210 
Mass.  609. 

"Opin.  of  the  Justices,  13  Allen,  593. 

•°In  re  Opin.  of  the  Justices,  211  Mass.  620;  and  In  re  Opin.  of  the 
Justices,  211  Mass.  630. 

"  In  re  Opin.  of  the  Justices,  214  Mass.  602. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  179 

to  the  council.  It  may  be  observed,  parenthetically,  that  if 
this  rule  be  taken  in  connection  with  the  rule  of  Opinion  of  the 
Justices,  126  Massachusetts,  557,  that  the  question  referred 
must  be  "necessary  to  be  determined  by  the  body  making  the 
inquiry,"  the  governor  is  as  effectually  deprived  of  assistance 
in  his  exercise  of  the  veto  power,  as  if  the  court  held  this  was 
not  an  executive  function  at  all,  as  in  Florida.®^  Even  in  1810, 
a  question  from  the  attorney-general,  at  the  suggestion  of  the 
house  of  representatives,  was  returned  without  an  opinion.^ 
The  form  of  the  New  Hampshire  Qlause  is  the  same  as  that  of 
Massachusetts,  but  the  point  we  are  discussing  has  not  been 
raised  recently  in  the  former  State.  Two  opinions  were  given 
to  the  governor  alone  in  1866  and  1873.^  In  1877,  however, 
the  justices  refused  to  consider  a  request  from  the  city  soHcitor 
of  Manchester,^  and  in  two  later  cases  they  have  declined  to 
express  approval  or  disapproval  of  rules  and  forms  prepared 
by  commissioners  and  submitted  to  the  court  under  a  statute.®^ 
If  the  justices  are  careful  to  answer  only  requests  from  an 
authorized  source,  they  may  be  compelled,  in  extreme  cases, 
to  assume  the  difficult  task  of  deciding  who  is  governor^^  or 
acting  governor,^^  or  even  which  of  two  legislatures  has  a  de 
jure  existence.^® 

The  second  class  of  cases  is  where  the  constitution  does 
not  authorize  advisory  opinions  at  all.  It  has  already  been 
pointed  out  that  in  many  such  cases  answers  have  been  given. 

•2  In  re  Executive  Communication,  etc.,  23  Fla.  297. 

"  Commonwealth  v.  Smith,  9  Mass.  530. 

"  Opin.  of  the  Justices,  53  N.  H.  634;  and  Opin.  of  the  Justices,  53 
N.   H.   640. 

«  Opin.  of  the  Justices,  62  N.  H.  706. 

"  In  re  School  Law  Manual,  63  N.  H.  574;  and  In  re  Probate  Blanks, 
71  N.  H.  621.  The  primary  reason  for  these  refusals  was  that  the  court 
was  not  asked  to  advise  merely,  but  actually  to  validate  the  rules  and  forms 
submitted  for  its  approval. 

•^  In  the  matter  of  the  Executive  Commimication,  etc.,  12  Fla.  653. 

•*  In  the  matter  of  the  Executive  Commimication,  etc.,  14  Fla.  289. 

"Statement  and  Questions  Submitted,  etc.,  70  Me.  570;  and  State- 
ment and  Questions  Submitted,  etc.,  70  Me.  600. 


180      DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

The  favored  questioners  include  the  governor/^  the  governor 
acting  through  the  attorney-general/^  the  governor  acting  at 
the  request  of  the  legislature/^  and  various  State  Boards  of 
which  the  governor  may  or  may  not  be  a  member/^  as  well 
as  one  or  both  houses  of  the  legislature/^  or  committees  thereof.''^ 
On  the  other  hand  there  are  so  many  instances  where  opinions 
have  been  refused  that  there  can  be  little  doubt  that  there  is  no 
obUgation  to  give  advice  either  to  the  legislature^®  or  to  any 
executive  official/^  in  the  absence  of  constitutional  requirement. 

2.  Advisory  opinions  will  not  be  rendered  when  the  question  sub- 
mitted deals  with  private  rights  involved  in  a  case  actttally 
before  the  courts. 

Apart  from  the  justification  on  principle/^  there  is  abundant 
authority  in  precedent  for  this  proposition.  It  is  true  that 
under  royal  pressure  the  EngUsh  judges  on  several  occasions 

'°Opin.  of  the  Judges  of  the  Supreme  Court,  30  Conn.  591;  Opin.  of 
the  Judges  of  the  Court  of  Appeals,  79  Ky,  621;  People  v.  Green,  1  Denio, 
614;  In  the  matter  of  Hughes,  61  N.  C.  57;  cases  under  the  Oklahoma 
statute  (see  pp.  76-78  supra) ;  and  Respublica  v.  De  Longchamps,  1  Dall. 
111. 

"  In  re  an  Act,  etc.,  83  N.  J.  L.  303. 

"  Opin.  of  the  Judges,  etc.,  37  Vt.  665. 

"  In  re  School  Fund,  15  Nebr.  684;  In  re  Board  of  Public  Lands  and 
Buildings,  18  Nebr.  340;  and  In  re  Babcock,  21  Nebr.  500. 

'*  Opin.  of  the  Judges,  etc.,  32  Conn.  565;  In  re  Railroad  Commissioners 
15  Nebr.  679;  In  re  State  Warrants,  25  Nebr.  659;  In  re  Senate  File  31, 
25  Nebr.  864;  In  re  Quaere,  etc.,  31  Nebr.  262;  In  re  House  Roll  284,  31 
Nebr.  505;  Deb.  Mass.  Conv.  1853,  I,  p.  138  (N.  Y.  case);  Opin.  ot  the 
Justices,  31  N.  C.  App.;  and  Report  of  the  Judges,  etc.,  3  Binney,  595. 

'5  In  re  Appropriations,  etc.,  25  Nebr.  662. 

'« Reply  of  the  Judges,  etc.,  33  Conn.  586;  In  the  matter  of  the  Appli- 
cation of  the  Senate,  10  Minn.  78;  Opin.s  of  the  Justices,  etc.,  64  N.  C.  785; 
and  State  v.  Baughman,  38  Ohio  St.  455. 

'^In  re  Board  of  Sinking  Fund  Commissioners,  32  S.  W.  414  (Ky.); 
Rice  V.  Austin,  19  Minn.  103;  State  v.  Dike,  20  Minn.  363;  and  the  opinion 
of  Norval,  J.,  in  In  re  Board  of  Purchase  and  Supplies,  etc.,  37  Nebr,  425, 
which  apparently  resulted  in  a  cessation  of  extra-judicial  consultation  in 
Nebraska — see   p.    76   supra. 

"See  p.  162  supra. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  181 

gave  extra-judicial  opinions  in  pending  cases,  but  the  later 
and  better  practice  condemned  such  a  course.'®  In  the  United 
States  the  authorities  are  in  support  of  the  rule  as  stated  almost 
without  exception.^^  Perhaps  in  reason  the  rule  should  be 
extended  to  cover  cases  where  a  decision  has  been  reached  in 
some  lower  court  and  it  is  still  possible  that  an  appeal  may  be 
taken,  at  least  where  the  case  is  of  a  criminal  nature;*^  but 
opinions  were  given  under  just  such  circumstances  in  Opinion 
of  the  Justices  (9  AUen  585)^  and  State  v.  Cleveland.83 

3.  The  possibility  that  the  question  submitted  may  at  some  tims 
come  before  the  courts  in  a  litigated  case  is  not  a  sufficient 
excuse  for  refusing  to  give  an  advisory  opinwn  thereon. 
The  writer  believes  this  is  the  better  rule  on  principle  and 
on  authority,  although  it  cannot  be  denied  that  there  is  much 
in  the  recent  practice  that  is  inconsistent  with  it.  In  fact, 
it  is  easily  demonstrable,  that  the  general  adoption  of  the 
contrary  rule  would  be  so  severe  an  emasculation  of  the  advisory 
opinion  as  to  make  it  of  insignificant  governmental  utility.  Of 
the  four  hundred  and  ten  advisory  opinions  which  have  been 
given  in  the  States  where  such  opinions  are  authorized  by  the 
constitution,  two  hundred  and  seven  involved  deaUng  with 
obvious  questions  of  private  rights,  including  both  personal 
rights  and  property  rights.  There  are  also  many  other  ques- 
tions which  could  have  been  brought  before  a  court  in  various 
ways.  If  possible  litigation  were  a  conclusive  test,  advisory 
opinions  could  be  obtained  from  supreme  court  judges  only 

^*  See  p.  16  supra. 

®°  Commonwealth  v.  Smith,  9  Mass.  530;  Opinion  of  Kent,  J.,  in  State 
V.  Cleveland,  58  Me,  564;  In  the  matter  of  Senate  Resolution,  etc.,  9  Colo. 
620;  In  re  Continuing  Appropriations,  18  Colo.  192;  In  re  Priority  of  Legis- 
lative Appropriations,  19  Colo.  58;  and  In  re  Assessment  of  Property,  etc., 
25  Colo.  296. 

"  In  re  Opin.  of  the  Judges,  8  Okla.  Cr.  467. 

^  See  Green  v.  Commonwealth,  12  Allen  155. 

"  58  Me.  564.     The  opinion  of  Kent.  J.,  is  worthy  of  attention. 


182     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

as  to  matters  of  law  the  final  determination  of  which,  under 
the  constitution,  rests  in  the  discretion  of  the  executive  or  legis- 
lative departments.  But  this  would  confine  the  scope  of  such 
opinions  almost  entirely  to  exclusively  pohtical  matters,  a 
field  into  which,  it  is  said,  the  judiciary  should  be  forced  as 
little  as  possible.^  If  the  advisory  opinion  is  to  struggle  for 
existence  between  these  Symplegades,  it  might  as  well  give 
up  the  ghost. 

The  judges  of  our  courts  have  not  always  approached  the 
problem  we  are  discussing  from  the  same  point  of  view.  Some- 
times they  have  been  content  to  announce  simply  that  ex  parte 
opinions  upon  questions  of  private  right  should  not  be  given, 
sometimes  they  have  said  that  questions  of  private  right  should 
only  be  adjudicated  in  regular  proceedings  in  court.  Several 
courts  have  laid  down  the  rule  that  they  will  not  construe 
existing  statutes  in  advisory  opinions,  because  private  rights 
may  already  have  arisen  thereunder.  It  is  possible,  too,  to 
state  the  proposition  in  positive  terms  of  inclusion  rather  than 
negative  terms  of  ehmination,  and  say  that  only  questions 
publici  juris  will  be  made  the  object  of  extra-judicial  advice. 
It  will  be  convenient  to  examine  these  various  statements  in 
turn,  as  a  series  of  rules,  as  the  different  phraseology  has  sug- 
gested different  arguments  both  pro  and  contra  and  has  been 
responsible  for  different  developments  and  appHcations. 

(a)  Ex  parte  advisory  opinions  upon  questions  of  private 
right  should  not  he  given.  (?)  Although  there  are  quite  a  number 
of  cases  in  which  this  principle  has  been  asserted  obiter,  very 
few  can  be  discovered  where  it  was  the  basis  for  a  refusal. 
The  phrase  has  been  persistently  misused  in  both  instances. 
Strictly  speaking,  an  advisory  opinion  to  the  executive  or  legis- 
lative departments  could  only  be  ex  parte,  if  it  dealt  with  con- 
tentious matter  in  which  the  State  was  interested  as  a  possible 

•*  Cf.  the  remarks  of  Story,  J.,  in  1820,  and  of  ex- Justice  Morton  in 
1853,  in  Mass.,  referred  to  on  pp.  35-37  supra. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  183 

litigant.^  Cases  of  that  description  are  rare,  and  the  practice 
conflicting.  In  1825  the  Massachusetts  justices  reluctantly 
advised  the  house  of  representatives  that  the  State  was  under 
no  obligation  to  pay  certain  land  rents  to  the  trustees  of  a  par- 
ticular estate.^  So,  too,  in  1844,  they  rendered  an  opinion  as 
to  the  sinking  fund  contribution  imposed  upon  the  Western 
Railroad  corporation  by  statu te.^^  On  the  other  hand  as 
early  as  1816,  the  New  Hampshire  justices  refused  to  express 
any  opinion  upon  the  power  of  the  legislature  to  amend  private 
corporation  charters;  they  advanced  two  reasons — (1)  that 
the  constitution  "did  not  contemplate  that  the  opinion  of  the 
justices  of  the  superior  court  should  be  required  upon  a  mere 
question  of  right  between  the  legislature  and  individuals,  but 
upon  important  questions  of  a  nature  altogether  pubUc;" 
(2)  the  importance  "that  to  the  decision  of  every  question  of 
a  new  impression,  involving  private  rights,  we  should  not  only 
in  fact  come,  but  .  .  .  that  those  who  are  interested  should 
have  a  reasonable  confidence  that  we  come,  with  minds  entirely 
unshackled  by  preconceived  opinions."^*  If  the  first  reason 
is  a  vaUd  excuse,  it  would  seem  to  be  appUcable  to  the  two 
Massachusetts  cases  just  referred  to,  but  it  is  evident  that 
either  the  New  Hampshire  opinion  had  not  come  to  the  atten- 
tion of  the  Massachusetts  justices,  or  that  it  did  not  conmiend 
itself  to  them.  In  so  far  as  the  second  reason  may  be  taken  as 
referring  to  cases  where  the  State  is  not  a  possible  party,  it  is 
surely  ohiter.  Yet  this  very  extension  of  the  argument  to  all 
cases  involving  private  rights  has  found  much  favor  in  recent 
years  and  is  responsible  for  a  deplorable  confusion  of  the  real 

^  "Of  legal  proceedings  ex  parte  ordinarily  implies  a  hearing  or  examina- 
tion in  the  presence  of,  or  on  papers  filed  by,  one  party  and  in  the  absence  of, 
and  often  \s4thout  notice  to,  the  other." — Webster. 

"The  term  ex  parte  impUes  an  examination  in  the  presence  of  one  of  the 
parties  and  the  absence  of  the  other. " — Bouvier. 

**  Opin.  of  the  Justices,  7  Pick.  130  n. 

*^  Opin.  of  the  Justices,  5  Mete.  596. 

«8  Opin.  of  the  Court,  62  N.  H.  704. 


184     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

issue.  The  Massachusetts  practice  is  fairly  sound  on  this 
point.  In  Functions  of  Judiciary,  148  Massachusetts,  623, 
the  justices  thought  that  when  a  question  involved  private 
rights  there  was  the  more  reason  to  be  sure  it  was  within  the 
advisory  opinion  requirement,  but  their  ultimate  refusal  was 
based  on  an  alleged  lack  of  a  solemn  occasion.  Again  in  1906^^ 
they  declared  that  opinions  which  might  affect  the  rights  of 
parties  not  present  "ought  not  to  be  given,  except  when  needed 
in  the  consideration  of  an  important  matter  of  state  that  calls 
for  official  action.  "^°  But  there  is  not  a  single  example  of  a 
refusal  resting  clearly  and  solely  upon  this  "private  rights" 
argument  and  nowhere  is  there  the  confusion  which  exists  in 
some  of  the  other  States,  between  opinions  which  may  touch 
upon  the  rights  of  unrepresented  parties,  and  ex  parte  opinions. 
Missouri,  with  a  case  of  1874,  and  Colorado,  with  a  long  line 
of  cases  beginning  in  1887,  are  primarily  to  blame  for  inferior 
practice.  In  the  Missouri  case^^  the  house  of  representatives 
asked  the  justices  whether  a  bill  extending  the  time  on  a  debt 
due  the  State  from  a  railroad  would  imperil  the  State's  first 
Hen.  The  justices,  apparently,  did  not  object  to  giving  an  opin- 
ion because  the  State's  interests  were  involved,  though  such 
an  opinion  would  be  truly  ex  parte,  but  withheld  their  advice 
because  the  question  concerned  others  besides  the  State,  and 
opinions  "upon  points  which  may  subsequently  come  before 
them  in  contested  cases  .  .  .  would  be  ex  parte,^'  etc.  It  is 
conceivable  that  they  had  in  mind  only  actions  where  the 
State  might  be  a  party,  though  other  Missouri  cases^^  do  not 
encourage  so  lenient  a  construction;  but  there  can  be  no  doubt 
that  in  the  Colorado  cases,  the  justices  were  referring  only  to 
actions  between  private  persons.    The  source  of  the  confusion 

*^In  re  Opin.  of  the  Justices,  190  Mass.  611. 

^°  Cf.  Attorney-General  of  Canada  v.  Attorneys-General  for  Ortario, 
Quebec  and  Nova  Scotia,  (1898)  A.  C.  700,  for  Judicial  Committee  practice. 

"  Opin.  of  the  Court,  etc.,  55  Mo.  497. 

^  Advisory  Constitutional  Opin.,  etc.,  37  Mo.  135;  In  the  matter  of  the 
N.  Mo.  R.  R.,  51  Mo.  586;  and  In  the  matter  of  Inquiries,  etc.,  58  Mo.  369. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  185 

is  an  obiter  dictum  in  In  the  matter  of  Senate  Resolution,  etc., 
9  Colorado,  620.  A  list  of  very  general  questions  on  the  subject 
of  irrigations^  was  returned  unanswered,  for  the  very  good  reason 
that  "  there  are  now  in  this  and  other  courts  in  the  State  actions 
through  which  some  of  these  matters  are  in  process  of  adjudica- 
tion. "  It  was  also  quite  properly  suggested  "  that  a  satisfactory 
response  to  the  resolution  would  require  vast  research  and  extra- 
ordinary caution  .  .  .  and  the  period  of  time  provided  for  a 
legislative  session  would  hardly  be  sufficient  to  return  safe  and 
satisfactory  answers  to  more  than  one  such  inquiry."  But 
unfortunately  the  inevitable  judicial  fondness  for  enunciating 
broad  principles  led  them  to  add  that  "  it  could  not  have  been 
the  intention  to  authoriz"e  an  ex  parte  adjudication  of  individual 
or  corporate  rights  by  means  of  a  legislative  or  executive  ques- 
tion; parties  must  still  adjudicate  their  rights  in  the  ordinary 
and  regular  course  of  judicial  proceeding. "  Possibly  even  this 
excuse  would  have  been  admissible  in  this  case,  if  necessary, 
for  the  justices  objected  only  to  giving  such  "ex  parte'^  opinions 
"except  upon  the  gravest  and  most  urgent  necessity;"  and  as 
they  pointed  out,  there  was  no  intimation  that  the  matters 
involved  were  covered  by  any  bills  before  the  legislature,  while 
some  of  the  questions  certainly  appear  to  be  concerned  with 
private  rights  exclusively.  But  these  quahfications  did  not 
attend  the  doctrine  when  it  made  its  next  appearance  (also 
obiter)  in  In  the  matter  of  the  ConstitutionaKty  of  SB.  No.  65, 
12  Colorado,  466.  The  justices  here  accepted  it,  shorn  of  all 
quahfications,  on  the  authority  of  the  earHer  cases,  and  tried 
to  reinforce  it  by  a  "due  process  argument."^    Henceforth 

93  For  the  questions,  see  SJ.  1887,  p.  650. 

9*  "It  is  a  principle  declared  by  our  constitution  (Sec.  25,  Art.  2),  and 
of  universal  recognition,  that  no  person  shall  be  deprived  of  life,  liberty 
or  property  without  due  process  of  law.  But  there  cannot  be  due  process 
of  law  unless  the  party  to  be  affected  has  his  day  in  court.  Yet  a  careless 
construction  and  application  of  this  constitutional  provision  might  lead  to 
the  ex  parte  adjudication  of  private  rights  by  means  of  a  legislative  or  exe- 
cutive question,  without  giving  the  party  interested  a  day  ...  in  court. " 


186     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

the  rule  was  unquestioned.  It  has  been  quoted  obiter  many 
times,  ^^  and  has  served  as  authority  for  several  refusals  to 
answer,  both  when  an  opinion  would  really  have  been  ex  parte, ^^ 
and  when  questions  of  private  right  alone  were  involved. ^^  Three 
times  it  has  served  as  a  basis  for  refusals  to  review  matters 
already  passed  upon  in  a  litigated  case,  or  to  "overrule"  regular 
cases  in  opinions. ^^  It  is  responsible,  also,  for  two  refusals  in 
South  Dakota,^^  where  it  made  its  first  appearance,  obiter,  in 
the  exact  phraseology  of  12  Colorado,  466;^°*^  and  for  a  dictum 
in  the  dissenting  opinion  of  Norval,  J.,  in  Nebraska.^^^ 

Evidently  there  are  two  kinds  of  cases  to  be  considered 
here — the  one  where  there  is  some  possibility  of  action  being 
brought  to  which  the  interrogator,  or  perhaps  the  State,  would 
be  a  party,  the  other  where  the  private  rights  of  persons  not 
before  the  court,  and  of  no  others,  are  made  the  subject  of 
requests  for  advice.  In  the  first,  the  opinion,  if  given,  would 
really  be  ex  parte,  in  the  second  that  phrase  is  loosely  used  to 
mean  that  parties  whose  rights  might  be  involved  are  unrepre- 
sented before  the  court.  The  first  answer  to  be  made  to  the 
arguments  noted  above  applies  alike  to  both;  it  is  that  since 
the  opinions  requested  are  advisory  only  and  are  not  binding 
upon  the  court  or  justices  if  the  same  matters  later  come  before 

^5  In  re  Appropriations,  etc.,  13  Colo.  316;  In  re  Priority  of  Legislative 
Appropriations,  19  Colo.  58,  et  al.  It  is  not  clear  whether  it  is  obiter  in  In 
re  State  Board  of  Equalization,  24  Colo.  446,  In  re  HB.  No.  99,  26  Colo. 
140,  In  re  SB.  No.  27,  28  Colo.  359,  and  In  re  Interrogatories  of  the  Senate, 
54  Colo.  166,  for  several  reasons  were  assigned  for  these  refusals. 

^In  re  Penitentiary  Commissioners,  19  Colo.  409;  and  In  re  Leasing 
of  State  Lands,  27  Colo.  99. 

8^  In  re  Appointments  by  the  Governor,  etc.,  21  Colo.  14;  and  In  re 
Assessment  of  Property,  etc.,  25  Colo.  296. 

8*  In  re  House  Resolutions,  etc.,  15  Colo.  598;  In  re  Assessment  of  Pro- 
perty, etc.,  25  Colo.  296;  and  In  re  SB.  No.  142,  etc.,  26  Colo.  167. 

"  In  re  Chap.  6,  Sess.  L.  1890,  8  S.  D.  274;  and  In  re  House  Resolution 
No.  30,  10  S.  D.  249. 

"0  In  re  Construction  of  Constitution,  3  S.  D.  548. 

"*  In  re  Board  of  Purchase  and  Supplies,  etc.,  37  Nebr.  425. 


INTERPRETATION  OF  AD\r[SORY  OPINION  CLAUSES  187 

them  in  regular  judicial  proceedings,  the  legal  rights  of  indivi- 
duals cannot  suffer  from  the  giving  of  those  opinions.  This 
was  recognized  in  the  two  Massachusetts  cases  where  actual  ex 
parte  opinions  were  given,^^  as  well  as  in  Colorado,^''^  and  in  an 
extra-constitutional  advisory  opinion  in  Connecticut.^'^  The 
Canadian  justices  have  even  given  an  opinion  in  a  case  that  was 
practically  an  appeal  from  a  criminal  judgment,  relying  on  the 
fact  that  they  would  not  be  bound  thereby.^^^  Perhaps  the  preva- 
lence of  the  "  ex  parte  "  argument  in  Colorado  is  due  largely  to  the 
pecuhar  theory  entertained  by  t^e  Colorado  justices  for  some 

*°2  In  Adams  v.  Bucklin,  7  Pick.  125,  the  court  states  clearly  that  they 
do  not  consider  Opin.  of  the  Justices,  7  Pick,  130  n.,  binding  upon  them; 
and  in  Opin.  of  the  Justices,  5  Mete.  596,  they  say:  "Such  an  opinion,  with- 
out notice  to  the  parties,  would  be  contrary  to  the  plain  dictates  of  justice, 
if  such  an  opinion  could  be  considered  as  having  the  force  of  a  judgment, 
binding  on  the  rights  of  parties.  But  ...  as  an  opinion  upon  an  abstract 
question,  without  any  investigation  of  facts,  and  without  argument,  must 
be  taken  as  an  opinion  upon  the  precise  question  proposed,  which  cannot 
affect  the  rights  of  parties,  should  they  hereafter  be  brought  before  the  court 
in  a  regular  course  of  judicial  proceeding,  we  have  thought  it  best  ...  to 
submit  an  opinion  upon  the  questions  proposed." 

^'"In  In  re  Fire  and  Excise  Commissioners,  19  Colo.  482,  the  court 
gave  a  real  ex  parte  opinion  because  of  "the  gravity  of  the  situation,  and 
the  impending  danger  to  Hfe  and  property,"  and  in  the  subsequent  cases 
of  People  V.  Martin  and  People  v.  Orr  (19  Colo.  565),  the  court  said:  "But 
it  could  not  be  assumed  that  such  ex  parte  statement  could  not  be  contro- 
verted, nor  that  an  opinion  based  thereon  might  not  require  modification 
when  the  other  side  should  present  their  cause  in  court  as  they  had  a  right 
to  do.  .  .  .  No  opinion  based  upon  such  statement  could  have  been  made 
to  bind  the  parties  contending  for  official  place  upon  the  fire  and  police 
board." 

10*  "Our  action  being  extra-judicial,  and  really  rather  our  individual 
than  official  action,  it  cannot  be  of  any  binding  character  whatever.  No 
judge  of  the  Supreme  or  Superior  Court,  in  any  case  hereafter  before  him, 
would  be  boimd  by  our  opinion.  We  ourselves  should  not  be  bound  by  it. " 
— Reply  of  the  Judges,  etc.,  Z^  Conn.  586. 

106  In  re  Criminal  Code,  43  Can.  S.  C.  R.  434;  but  the  Okla.  justices 
declined  to  give  any  advice  in  a  similar  case — ^In  re  Opin.  of  the  Judges  (8 
Okla.  Cr.  467). 


188        DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

time,  that  their  advisory  opinions  had  al!  the  force  of  a  regular 
decision.^*^  Thus  the  statement  quoted  above  from  In  the 
matter  of  Senate  Resolution,  etc.,  9  Colorado,  620,  refers  to  an 
ex  parte  "adjudication;"  and  in  In  the  matter  of  the  Constitu- 
tionality of  SB.  No.  65,  12  Colorado,  466,  the  court  frankly 
affirms  that  advisory  opinions  in  Colorado  ''have  all  the  force 
and  effect  of  judicial  precedents."  Again,  in  In  re  House 
Resolutions,  etc.,  15  Colorado,  598,  it  is  declared  that  regular 
decisions  should  not  be  "overruled"  in  advisory  opinions. ^^^ 
The  decision  in  People  v.  Martin  and  People  v.  Orr  should  have 
cleared  away  this  misunderstanding;  but  the  ex  parte  test  is 
still  applied  in  later  cases,^*^^  and  for  the  same  reason,^^^  and 
the  justices  continue  to  object  to  "review"  previous  decisions 

i««See  pp.   228-231  injra. 

^"  Compare  the  careful  statement  of  the  Massachusetts  justices  in  a 
recent  opinion:  "It  is  not  open  to  the  justices  in  answering  questions  sub- 
mitted to  them  under  the  Constitution  to  attempt  to  overrule  a  decision 
made  by  the  court  in  a  cause  between  party  and  party,  or  to  speculate  upon 
the  correctness  of  such  a  decision.  If  such  a  decision  is  to  be  overruled, 
it  can  only  be  after  argument  in  another  cause  between  party  and  party, 
where  the  rights  of  all  can  be  fully  guarded."  In  re  Opin,  of  the  Justices, 
115  N.  E.  978  (Mass.)     The  italics  are  mine. 

*"*  See  especially  In  re  Appointments  by  the  Governor,  etc.,  21  Colo. 
14;  and  In  re  Assessment  of  Property,  etc.,  25  Colo.  296. 

^''^The  advisory  opinion  amendment  was  not  "intended  to  sanction 
a  practice  whereby  the  rights  of  property  or  the  title  to  an  ofl&ce  or  the 
construction  of  an  existing  statute  should  be  determined  in  an  ex  parte 
proceeding  in  answer  to  either  an  executive  or  legislative  question." — In 
re  Appointments,  etc.,  21  Colo.  14.  Also:  "The  various  institutions 
whose  rights  are  involved  are  not  before  the  court,  and  they  should  not 
be  concluded  without  a  hearing." — In  re  State  Board  of  Equalization,  24 
Colo.  446.  Also  see  In  re  HB.  No.  99,  etc.,  26  Colo.  140,  and  In  re  Leasing 
of  State  Lands,  27  Colo.  99.  "To  answer  the  questions  would  .  .  .  involve 
a  determination  of  private  rights  in  an  ex  parte  proceeding.  It  would  neces- 
sarily determine  the  title  to  the  ofl&ce  of  Lieutentant-Governor  and  to  whom 
the  salary  pertaining  to  such  oflSce  properly  belongs. " — In  re  Interrogatories 
of  the  Senate,  54  Colo.  166.  "Rights  may  have  arisen  or  attached  which 
should  not  be  determined  in  a  purely  ex  parte  proceeding." — In  re  SR.  No. 
4,  54  Colo.  262. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  189 

in  advisory  opinions,  on  the  authority  of  In  re  House  Resolu- 
tions, etc.,  15  Colo.  598,  though  the  same  argument  is  not  men- 
tioned again.^^°  The  dissenting  opinion  of  Scott,  J.,  in  In  re 
Interrogatories  of  the  Senate,  54  Colorado,  166,  gives  the  more 
approved  theory^^^  and  we  think  it  can  be  shown^^  that  the 
doctrine  of  In  the  matter  of  the  ConstitutionaUty  of  SB.  No.  65, 
12  Colorado,  466,  as  to  the  binding  effect  of  advisory  opinions  has 
since  been  thoroughly  discredited  in  Colorado.  It  is  to  be  hoped, 
then,  that  the  justices  in  that  State  will  yet  come  to  recognize, 
that  since  the  alleged  reason  for  the  ex  parte  test  does  not  exist, 
the  test  itself  should  be  abandoned,  unless  it  can  be  placed  on 
a  more  substantial  basis.  In  this  event,  the  South  Dakota 
justices  might  again  follow  their  neighbors'  lead,  this  time 
in  paths  laid  out  on  a  more  reasoned  plan. 

The  second  answer  may  also  apply  to  both,  though  in 
different  degree.  If  the  interrogator  has  need  for  the  advice 
requested  that  he  may  know  what  course  to  pursue  when 
important  questions  of  a  pubhc  nature  (though  perhaps  in- 
volving private  rights)  are  presented,  questions  calUng  for  exe- 
cutive or  legislative,  i.e.  poUtical  action,  that  the  interests  of 
the  commonwealth  may  be  promoted,  should  not  consideration 
for  the  general  welfare  prevail  over  too  scrupulous  a  regard 
for  private  rights?  Solus  popvXi  suprema  lex  esto.  Scott, 
J.,  recognized  this  argument  in  In  re  Interrogatories  of  the 
Senate,  54  Colorado,  166,  though  perhaps  he  only  intended 
to  extend  it  to  serious  crises,  such  as  existed  in  In  re  Fire  and 
Excise  Commissioners,  19  Colorado,  482,  and  In  re  SR.  No. 
10,  ?>d>  Colorado,  307."^ 

""^  In  re  Assessment  of  Property,  etc.,  25  Colo.  296;  and  In  re  SB.  No* 
142,  etc.,  26  Colo.   167. 

"^  "  I  do  not  understand  that  the  answer  requested  is  anything  but 
advisor>',  and  may  be  reviewed  or  changed  upon  a  more  formal  and  complete 
investigation. " 

"2  See  pp.  228-231  infra. 

"^Cf.  the  statement  in  In  re  Opin.  of  the  Justices,  190  Mass.  611: 
"These  opinions  .  .  .  ought  not  to  be  given,  except  when  needed  in  the 
consideration  of  an  important  matter  of  state  that  calls  for  ofl&cial  action. " 


190     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

Thirdly,  it  may  be  replied  that  where,  as  in  most  of  the  cases 
cited  in  connection  with  this  rule,  the  basis  for  the  embarrass- 
ment of  the  justices  is  that  parties  whose  rights  are  concerned 
are  unrepresented,^^^  it  is,  as  a  rule  not  difficult  to  secure  the 
presentation  of  an  argument  for  all  interests  concerned,  if  not 
from  the  parties  themselves,  because  unascertained,  at  any 
rate  from  amid  curiae.  We  have  already  seen  how  easily 
this  is  managed  in  the  Canadian  practice."^  Under  the  statute, 
the  court  is  empowered  to  provide  for  the  representation  of  the 
Dominion,  any  province,  or  any  person  or  class  of  persons  who 
may  be  interested  in  a  question  referred;  notice  is  given  of  the 
date  set  for  argument,  and  a  right  of  hearing  is  assured.^^^ 
Furthermore  if  any  interests  affected  are  not  in  fact  represented, 
the  court  can  order  argument  in  behalf  of  those  interests  by  an 
amicus  curiae  at  the  public  expense.  In  1912^^^  it  was  forcibly 
urged  upon  the  Judicial  Committee  of  the  Privy  Council  that 
this  did  not  assure  representation  of  all  interests,  and  that  some 
might  be  prejudiced;  but  the  Committee  could  not  be  persuaded 
that  advisory  opinions  given  under  the  Act  would  be  "subver- 
sive of  justice.  "^^^    Counsel  have  appeared  and  arguments 

"*  That  this  is  an  important  element  in  the  ex  parte  objection  may  be 
seen  from  In  re  SR.  No.  10,  etc.,  33  Colo.  307,  where  the  court  declared 
the  proceeding  was  not  ex  parte  because  there  were  actual  litigants  (the 
parties  in  a  governorship  contest),  though  they  were  not  litigants  before 
the  supreme  court  but  before  the  legislature.  Also  see  the  remarks  of 
Story,  J.,  in  Deb.  Mass.  Conv.  1820,  pp.  489-90,  and  of  ex- Justice  Mor- 
ton in  Deb.  Mass.  Conv.  1853,  II,  p.  685. 

"5  See  pp.  81  and  80  supra. 

"6  In  In  re  Provincial  Jurisdiction,  etc.,  24  Can.  S.  C.  R.  170,  the 
court  directed  that  the  Distillers'  and  Brewers'  Association  be  notified  of 
a  hearing  hi  which  they  would  be  interested. — Cameron,  Supreme  Court 
Practice,  p.  268.  Extra  counsel  were  heard  in  In  the  matter  of  the  Re- 
presentation, etc.,  33  Can.  S.  C.  R.  594. 

"^  Attorney-General  for  Ontario  v.  Attorney-General  for  Canada, 
(1912)  A.  C.  571. 

"8  Their  chief  reason  for  this  conclusion  probably  was  that  the  opinions 
had  no  binding  force. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  191 

have  been  heard  on  every  question  referred  to  the  Canadian 
Supreme  Court,  at  least  since  1892.  But  certainly  the  justices 
of  a  supreme  court  do  not  need  statutory  or  constitutional  au- 
thority to  bring  about  these  same  results.  As  a  matter  of 
fact,  the  representation  of  private  interests  which  are  affected 
is  fairly  common  in  the  advisory  opinions  of  the  United  States. 
The  interested  parties  themselves  have  had  their  position 
presented  by  counsel  in  a  good  many  cases,^^^  usually  at  the 
request  of  the  justices.^^^  In  New  Jersey  the  statute  that  we 
have  already  mentioned  provided .,f or  a  "full  hearing  and  con- 
sideration,"^^ and  counsel  were  heard  for  both  sides  in  the 
only  application  under  the  statute  that  has  come  to  our  atten- 
tion.^ In  one  case  under  the  criminal  appeal  statute  of  New 
York^^  argument  was  heard  in  behalf  of  the  defendant,  and  in 
a  North  Carolina  case^  the  judges  intimated  that  if  the  matter 
submitted  "were  deemed  by  them  doubtful,  they  would  have 
been  obliged  to  defer  their  answer  until  the  parties  or  their 
counsel    could    submit    their    views."    The    New   Hampshire 

"9  Opin.  of  the  Justices,  7  Pick.  130  n.;  In  re  Opin.  of  the  Justices,  193 
Mass.  605;  In  re  Opin.  of  the  Justices,  66  N.  H.  629;  Opin.  of  the  Justices, 
72  N.  H.  601;  In  re  Opin.  of  the  Justices,  75  N.  H.  613;  In  re  Opin.  of  the 
Justices,  77  N.  H.  606;  In  re  Penitentiary  Commissioners,  19  Colo.  409; 
In  re  Annexation  and  Consolidation,  etc.,  26  Colo.  136;  In  re  HB.  No. 
99,  etc.,  26  Colo.  140;  In  re  SB.  No.  27,  etc.,  28  Colo.  359;  In  re  SR.  No. 
10,  etc.,  33  Colo.  307;  In  re  HR.  No.  10,  50  Colo.  71;  Questions  Propounded 
by  Governor,  etc.,  50  Colo.  84;  In  re  Interrogatories  of  the  Senate,  54  Colo. 
166;  In  re  Quaere,  etc.,  31  Nebr.  262;  In  re  House  Roll  284,  31  Nebr.  505; 
In  re  Board  of  Sinking  Fund  Commissioners,  32  S.  W.  414  (Ky.);  and  Res- 
publica  V.  De  Longchamps,  1  Dall.  Ill  (Pa.). 

"°  WTien  the  senate  and  house  of  representatives  were  in  doubt  as  to 
the  financial  prerogatives  of  the  senate,  the  Massachusetts  justices  heard 
arguments  from  both  sides  before  submitting  an  opinion.  Opinion  of  the 
Justices,  126  Mass.  557. 

"^  One  of  the  constitutional  amendments  proposed  in  the  New  York 
Convention  of  1915  (see  p.  68  supra)  contained  a  similar  phrase. 

"2  In  re  an  Act,  etc.,  83  N.  J.  L.  303. 

^^  People  V.  Green,  1  Denio  614. 

^2*  Opin.  of  the  Justices,  31  N.  C.  App. 


192  DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

justices  once  delayed  an  opinion  for  some  time  in  order  to  give 
an  opportunity  for  interested  parties  to  appear,  but  none  came.^^^ 
In  a  South  Dakota  case,  both  parties  offered  to  appear,  but 
the  court  decUned  to  act,  on  other  grounds.^^^  The  question 
did  not  trouble  the  Florida  justices  much,  under  the  first  form 
of  the  clause,  for  in  one  case  they  gave  an  opinion,  where  one 
interested  party  offered  to  appear  and  the  other  refused.^^^ 
In  a  few  instances  arguments  have  been  heard  from  one  party 
only,  but  it  may  fairly  be  presumed  that  opposing  interests 
would  have  been  admitted  to  a  hearing  if  they  had  appeared.^^s 
Also  it  is  quite  possible  for  amid  curiae  to  render  assistance.^^ 
Arguments  from  such  sources  alone  would  go  far  to  meet  this 
*^ex  parte"  objection,  for  it  must  be  remembered  that  the 
justices  are  asked  to  pass  only  upon  questions  of  law,  and  either 
the  appUcation  of  the  general  principles  to  a  particular  set  of 
facts  is  left  to  regular  cases  inter  partes,  or,  if  the  principles 
are  based  upon  certain  facts  alleged  in  the  inquiry,  it  is  quite 
clear  that  there  is  no  objection  to  a  subsequent  Htigant  proving 
a  different  set  of  facts.^^" 

A  fourth  answer  that  might  legitimately  be  offered  is  that 
so-called  "ex  parte"  opinions  have  in  fact  often  been  given  in 
cases  where  private  rights,  both  personal  and  property,  were 
involved  in  the  questions  referred.  It  has  already  been  men- 
tioned that  over  half  of  the  advisory  opinions  rendered  in 
obedience  to  constitutional  requirement  in  the  United  States 
may  be  so  classed.  An  enumeration  would  require  considerable 
space  and  seems  to  be  unnecessary.  Examples  from  any  of 
the  States  where  the  clause  has  been  tried  may  readily  be  found 
among  the  classified  cases  in   Chapter  II. 

125  In  re  Opin.  of  the  Justices,  73  N.  H.  621. 

128  In  re  Opin.  of  the  Judges,  34  S.  D.  650. 

1"  In  the  matter  of  the  Executive  Communication,  etc.,  12  Fla.  653. 

128  In  re  Opin.  of  the  Justices,  76  N.  H.  588;  In  re  HB.  No.  165,  15  Colo. 
593,  595;  In  re  House  Resolutions,  etc.,  15  Colo.  598;  In  re  HB.  No.  10, 
etc.,  15  Colo.  600;  and  In  re  Appropriations,  etc.,  25  Nebr.  662. 

"»  See  pp.  206-207  infra. 

""People  V.  Martin,  and  People  v.  Orr,  19  Colo.  565. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  193 

(b)  Questions  of  private  right  should  only  he  adjudicated  in 
regular  proceedings  in  court.  Of  the  truth  of  this  there  can  be 
no  doubt ;^^^  but  emphasis  must  be  placed  upon  the  word  "ad- 
judication." The  justices  have  sometimes  made  the  rule  as 
here  stated  an  excuse  for  decUning  to  give  advisory  opinions.^ 
In  this  aspect  all  the  objections  apply  to  it  that  were  raised  in 
the    examination   of    the   preceding   rule. 

(c)  No  advisory  opinions  should  be  given  in  advance  of  pos- 
sible cases  dealing  with  the  questions  referred.  (?) 

{d)  Existing  statutes  should  not  he  construed  in  advisory 
opinions.  (?)  It  will  be  convenient  to  consider  these  two  rules 
together  for  the  second  is  merely  the  logical  consequence  of 
the  first,  since  it  is  always  possible  that  cases  will  grow  out  of 
existing  statutes.  As  formulated  in  (c),  the  earliest  appearance 
of  this  proposition  was  in  a  Massachusetts  case  of  1877.^ 
In  addition  to  the  criticisms  of  this  case  already  suggested,^ 
it  may  be  added  here  that  the  refusal  of  the  justices  is  not  con- 
sistent with  earlier  cases/^  and  was  not  followed  in  scores  of 
later  cases.^^^  The  authority  of  this  opinion  has  not  been  re- 
cognized in  a  single  instance  in  any  other  State.    It  was  cited 

"1  See  notes  102,  103,  108  in  (a)  siipra, 

^'2  Advisory  Constitutional  Opinion,  etc.,  37  Mo.  135;  In  the  matter 
of  Inquiries  Submitted,  etc.,  58  Mo.  369;  In  re  HR.  No.  25,  15  Colo.  602; 
In  re  Appointments  by  the  Governor,  etc.,  21  Colo.  14;  and  In  re  Constitu- 
tionality of  SB.  No.  196,  23  Colo.  508. 
»"'  Opin.  of  the  Justices,  122  Mass.  600. 
13*  See  pp.    168-170  supra. 
^  Opin.  of  the  Justices,  7  Pick.  130  n.;  Opin.  of  the  Justices,  3  Cush. 
584;  Opin.  of  the  Justices,  1  Mete.  572;  Opin.  of  the  Justices,  1  Mete.  580; 
Opin.  of  the  Justices,  5  Mete.  587;  Opin.  of  the  Justices,  5  Mete.  591;  Opin. 
of  the  Justices,  5  Mete.  596;  Opin.  of  the  Justices,  9  Cush.  604;  Opin.  of  the 
Justices,  8  Gray  20;  and  Opin.  of  the  Justices,  9  Allen  585  (here  a  later  case 
actually  arose — Green  v.  Commonwealth,  12  Allen  155). 

i^'Opin.  of  the  Justices,  132  Mass.  600;  Opin.  of  the  Justices,  138 
Mass.  601;  Opin.  of  the  Justices,  etc.,  145  Mass.  587;  In  re  PubUc  Lighting, 
150  Mass.  592;  Opin.  of  the  Justices,  154  Mass.  603;  Opin.  of  the  Justices, 
etc.,  155  Mass.  598;  etc. 


194     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

in  the  minority  opinion  of  a  Maine  justice  in  1881,^'  but  his 
advice  was  not  withheld.  However,  opinions  have  been  refused 
in  other  States,  on  similar  grounds.^^^  More  often  the  rule  we 
are  discussing  has  been  announced  obiter,^^^  or  is  so  associated 
with  other  reasons  for  refusal  that  it  is  not  clear  which  was  the 
determining  test.^^^  From  the  cases  cited  in  the  notes  it  is 
evident  that  it  rests  upon  rather  slender  authority.  In  New 
Hampshire  it  is  supported  only  by  dicta,  and  in  a  1909  case,^^^ 
the  justices  actually  go  out  of  their  way  to  give  an  opinion  on 
a  point  that  could  "only  be  properly  questioned  in  a  judicial 
proceeding"  in  order  to  assist  the  governor  and  council  m 
deciding  a  question  of  pubHc  policy.  In  Maine,  it  only  appears 
obtter,  and  that,  too,  in  minority  dissenting  opinions.  In  both 
these  States  it  has  been  correctly  stated  that  extra- judical 
opinions  in  advance  of  possible  cases  are  to  be  denied  except 
upon  questions  within  the  scope  of  the  advisory  opinion  clause 
of  the  constitution,^^^  though  the  scope  is  construed  rather 
narrowly  in  the  Maine  cases.  The  Florida  justices  are  credi- 
ted with  a  single  weak  dictum}^^    South  Dakota  and  Nebraska 

"7  Question  Submitted,  etc.,  72  Me.  542.  fl 

"8  In  the  matter  of  the  N.  Mo.  R.  R.,  51  Mo.  586,  and  Opin.  of  the 
Court,  etc.,  55  Mo.  497,  (advice  would  have  been  ex  parte  in  these  cases); 
In  the  matter  of  the  ConstitutionaHty  of  SB.  No.  65,  12  Colo.  466;  In  re 
Appropriations,  etc.,  13  Colo.  316;  and  In  re  Penitentiary  Commissioners, 
19  Colo.  409. 

"8  Opin.  of  Justices,  70  N.  H.  638  (here  advice  would  really  have  been 
ex  parte) ;  In  re  Opin.  of  the  Justices,  76  N.  H.  597 ;  In  re  Opin.  of  the  Justices, 
76  N.  H.  601;  Opin.  of  the  Justices,  58  Me.  590;  In  re  Priority  of  Legislative 
Appropriations,  19  Colo.  58;  and  In  re  Construction  of  Constitution,  3 
S.  D.  548. 

"0  In  re  Opin.  of  Supreme  Court,  39  Fla.  397. 

i«  In  re  Opin.  of  the  Justices,  75  N.  H.  613. 

1*2  Opin.  of  the  Justices,  67  N.  H.  601;  In  re  Opin.  of  the  Justices, 
76  N.  H.  597;  and  Opin.s  of  the  Justices,  95  Me.  564. 

^^  Under  the  first  form  of  the  clause,  they  declared  that  it  made  no 
difference  whether  a  case  might  come  before  the  court  or  not.  In  the  mat- 
ter of  the  Executive  Communication,  etc.,  12  Fla.  653. 


3 

\ 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  195 

are  responsible  for  two,  on  the  authority  of  the  leading  Colo- 
rado case.^'^  Apart  from  the  lone  Massachusetts  opinion, 
then,  there  are  just  five  unquestioned  precedents  in  favor  of 
this  rule,  two  in  Missouri  and  three  in  Colorado.^^  In  both 
the  Missouri  cases  the  State's  rights  were  clearly  involved,  a 
circumstance  which  is  undoubtedly  embarrassing  to  justices, 
whether  with  reason  or  not.  The  same  is  true  of  the  third  Colo- 
rado case,  while  the  other  two  proceed  upon  the  false  hypothesis 
that  advisory  opinions  are  binding  adjudications. 

There  is  every  reason,  then,  for  rejecting  the  rule  as  here 
promulgated.  There  is  no  ground  for  it  historically;  the 
Enghsh  judges  at  most  attempted  to  draw  the  line  at  giving 
opinions  in  pending  cases  or  criminal  cases  that  were  practi- 
cally upon  them.  In  an  appeal  from  a  Canadian  advisory 
opinion,  the  Judicial  Committee  of  the  Privy  Council  gave 
their  opinions  on  questions  which  might  arise  in  litigated 
cases,^"*^  and  the  Canadian  justices  follow  the  same  practice. ^^^^ 
The  United  States  practice  furnishes  Uttle  in  favor  of  the  rule 
and  much  against  it.  As  in  Massachusetts,  so  in  the  other 
States  referred  to  above,  it  has  been  disregarded  in  so  many 
opinions  that  space  will  not  permit  an  enumeration.  Finally, 
theoretical  considerations  are  against  it.  The  four  arguments 
adduced  under  (a)  supra  are  of  equal  force  here,  and  may  be 
supplemented  by  others.  If  it  be  claimed  that  the  probabiUty 
of  future  cases  is  a  reason  for  refusal,  an  obvious  reply  is  that 
an  opinion  from  the  justices  will  reduce  such  probabihty  to  a 

^**  In  re  Construction  of  Constitution,  3  S.  D,  548;  and  In  re  Board  of 
Purchase  and  Supplies,  etc.,  37  Nebr.  425. 

"*  In  two  instances  where  advice  was  sought  under  a  statutory  re- 
quirement, the  rule  was  introduced  as  one  reason  for  declining  to  comply. 
Haybum's  Case,  2  Dall.  409;  and  In  the  matter  of  the  Application  of  the 
Senate,  10  Minn.  78. 

^««  Attorney-General  for  Ontario  v.  Attorney-General  for  Dominion, 
et  al.,  (1896)  A.  C.  348. 

"'  In  re  References,  etc.,  43  Can.  S.  C.  R.  536,  approved  in  Attorney- 
General  for  Ontario  v.  Attorney-General  for  Canada,  (1912)  A.  C.    571. 


196   DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

minimum,  thus  saving  a  great  deal  of  litigation,  while  to  the 
case  that  does  survive  the  justices  can  still  come  absolutely 
free  to  change  their  minds  upon  further  argument.  But  it 
need  not  be  admitted  that  the  probabiUty  that  cases  will  arise 
is  a  reason  for  refusing  advice.  If  the  constitution  plainly 
imposes  a  duty  upon  the  justices  to  give  their  opinions  upon 
certain  kinds  of  questions  coming  from  named  sources,  why 
should  the  probabiUty  of  embarrassment  to  the  justices  or 
to  private  citizens,  or  of  any  other  contingency,  be  an  excuse 
for  neglecting  that  duty?  Under  the  American  constitutional 
system,  a  department  of  the  government  is  entitled  to  refuse 
performance  of  a  task  that  is  on  its  face  within  the  duties 
imposed  upon  it  by  the  constitution,  only  if  its  independence 
is  threatened.  The  possibility  of  an  interference  with  that 
independence  "is  such  a  remote  hypothesis  that  it  cannot 
form  the  basis  of  an  argument  for  the  non-performance  of  a 
duty.  "1*8 

If  advisory  opinions  are  not  to  be  given  when  they  touch 
upon  private  rights  that  may  possibly  come  before  the  justices 
in  regular  judicial  proceedings,  it  would  seem  to  follow  that 
existing  statutes  should  not  be  construed  or  examined  as  to 
constitutionality,  since  future  cases  may  very  easily  necessitate 
such  a  construction  or  examination.  Yet  only  in  one  State 
have  the  justices  taken  this  logical  step.^"*^  Missouri  and 
Florida  (after  1875)  should  not  be  considered  because  of  the 

"8  H.  A.  Dubuque  in  Am.  L.  Rev.  XXIV,  p.  369,  at  p.  397. 

^*'  In  two  Massachusetts  cases,  the  justices  suggest  that  if  a  question 
calls  for  the  construction  of  a  statute  under  which  private  rights  may  have 
arisen,  they  will  be  particularly  careful  to  see  that  the  question  falls  within 
the  advisory  opinion  clause;  in  both,  opinions  were  refused  because  there 
was  no  solemn  occasion.  Functions  of  Judiciary,  148  Mass.  623;  and  In 
re  Power  of  Legislature  to  Require  Opinion,  150  Mass.  598.  It  is  submitted 
that  insofar  as  the  partial  refusal  of  In  re  Opinion  of  the  Justices,  115  N.  E, 
921  (Mass.)  is  rested  upon  the  rule  against  construction  of  existing  statutes, 
the  authorities  referred  to  by  the  justices  do  not  bear  out  their  assertion 
that  this  rule  "has  been  said  in  numerous  opinions  ...  to  be  sufficient 
to  require  them  to  decline  to  express  an  opinion." 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  197 

word  "constitutional"  in  their  advisory  opinion  provisions. 
Still  it  may  be  mentioned  in  passing  that  the  interpretation  of 
this  in  Missouri  was  very  narrow.  It  was  announced  obiter  in 
Advisory  Constitutional  Opinion,  etc.,  37  Missouri  135:  ques- 
tions of  constitutional  law  meant  questions  which  arise  upon 
the  constitution  alone,  i.e.,  "  some  question  of  the  proper  con- 
struction and  true  meaning  of  some  provision,  clause  or  words 
contained  in  the  Constitution."  Now  it  is  obvious  that  the 
determination  of  the  constitutionaUty  of  a  statute  will  generally 
depend  upon  the  true  meaning  df  words  or  phrases  in  the  con- 
stitution, and  in  fact  twice  the  Missouri  justices  passed  upon 
the  constitutionaUty  of  statutes  extra- judicially.^^^  But  they 
refused  to  do  so  in  1874^^^  and  declared  it  was  their  province 
to  give  an  opinion  as  to  the  constitutionaHty  of  an  act  only 
when  the  question  of  validity  was  raised  in  a  regular  case. 
In  Florida  the  justices  have  consistently  refused  to  give  opinions 
upon  questions  deahng  with  executive  powers  or  duties  under 
existing  statutes,  ^^^  with  the  possible  exception  of  In  re  Opinion 
of  the  Justices,  68  Florida,  560. 

It  was  reserved  for  the  Colorado  practice  to  develop  the 
rule  that  completed  legislation  should  not  be  construed  or  its 
constitutionaUty  considered  in  advisory  opinions.  It  is  found 
first  as  a  dictum  in  that  same  all-comprehensive  case  of  1889.^ 
"Executive  questions  must  be  exclusively  juris  publici,  and 
.  .  .  legislative  questions  must  be  connected  with  pending 
legislation,  and  relate  either  to  the  constitutionaUty  thereof 
or  to  matters  connected  therewith  of  purely  pubUc  right." 
The  first  part  of  the  delimitation,  relating  to  the  executive, 

""Advisory  Constitutional  Opin.,  etc.,  37  Mo.  139;  and  Opin.  of  Su- 
preme Court  Judges,  etc.,  55  Mo.  295. 

"1  In  the  matter  of  Inquiries  Submitted,  etc.,  58  Mo.  369. 

"2  In  re  Opin.  of  Supreme  Court,  39  Fla.  397;  Advisory  Opin.  to  the 
Governor,  50  Fla.  169;  In  re  Opin.  of  Justices,  54  Fla.  136;  In  re  Opin.  of 
Judges,  62  Fla.  4;  In  re  Advisory  Opin.  to  the  Governor,  64  Fla.  1;  In  re 
Opin.s  of  the  Justices,  69  Fla.  632;  and  In  re  Opin.  of  the  Justices,  69  Fla.  653. 

i"In  the  matter  of  the  ConstitutionaUty  of  SB.  No.  65,  12  Colo.  466. 


198     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

will  be  taken  up  a  little  later.  The  argument  for  the  second 
was  that  the  legislative  history  of  the  State  before  the  advisory 
opinion  was  introduced  made  it  clear  that  "the  primary  and 
principal  purpose  of  the  amendment"  was  to  enable  the  general 
assembly  to  avoid  the  "injurious  consequences  arising  from 
unconstitutional  legislation;"  and  that  this  is  corroborated 
by  the  fact  that  the  general  assembly  of  1887  propounded 
only  questions  as  to  the  constitutionaUty  of  pending  bills. 
There  are  two  objections  to  this.  In  the  first  place,  it  is  sub- 
mitted that  such  criteria  of  interpretation  should  only  be 
employed  when  the  words  of  the  amendment  are  ambiguous, 
and  then  only  to  decide  between  two  possible  meanings,  never 
to  supplement  or  modify  express  provisions. ^^  The  natural 
and  ordinary  meaning  of  words  should  prevail,  if  possible.^^ 
But,  secondly,  even  if  this  is  a  case  where  history  and  contem- 
porary circumstances  may  legitimately  be  resorted  to,  the 
conclusion  of  the  justices  cannot  be  supported.  The  history 
of  the  advisory  opinion  itself  should  be  consulted.  It  was  not 
by  accident  that  the  framers  of  the  amendment  employed  the 
well-established  New  England  phraseology,  which  had  itself 
been  largely  derived  from  the  earHer  English  practice.  Is  it 
not  reasonable  to  suppose,  when  legislators  use  a  "phrase 
consacree,"  a  particular  and  unusual  assemblage  of  words 
which  have  been  for  a  century  attached  to  a  single  institution, 
that  they  intended  to  transfer  that  institution  to  their  own 
system?  Why,  then,  if  history  was  to  guide  their  interpreta- 
tion, did  not  the  justices  endeavor  to  search  out  the  character- 
istics of  the  advisory  opinion  as  it  existed  when  it  was  incor- 
porated into  the  Colorado  constitution?  If  the  general  assem- 
bly of  1885  had  wished  to  limit  their  privilege  of  extra-judicial 
consultation  to  questions  touching  pending  legislation,  they 
could  certainly  have  found  words  and  phrases  more  clearly 

i"Cf.  Willoughby,  Const.,  I,  p.  33;  Story  on  the  Const.,  s.  407;  and 
Cooley,  Constitutional  Law,  p.  388, 

i«  Marshall,  C.  J.,  in  Gibbons  v.  Ogden,  9  Wheat.  1,  at  p.  188. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  199 

expressing  that  intention  than  those  appearing  in  the  amend- 
ment, which,  indeed,  on  the  surface  suggest  no  ambiguity  at 
all.  The  argument  from  contemporary  construction  is  meaning- 
less, for  the  majority  of  inquiries  from  legislatures  in  any  State 
naturally  are  connected  with  pending  legislation. 

After  this  dictum  of  1889,  the  Colorado  cases  on  existing 
statutes  are  irreconcilable.  Before  that  time  there  had  been 
four  opinions  in  which  existing  legislation  was  construed  ;^^ 
in  every  instance  it  is  true  that  there  had  been  no  chance  for 
private  rights  to  arise  under  the  statutes,  but  this  point  is  not 
mentioned.  However,  the  same  course  is  followed  in  four 
cases  of  a  later  date  as  well.^^^  The  seed  sown  in  1889  first 
bore  fruit  in  1891.  The  house  asked  whether  the  State  treasur- 
er could  credit  county  treasurers  with  moneys  paid  out  by  them 
as  scalp  bounties  under  an  act  of  1889  and  whether  the  present 
State  treasurer  was  entitled  to  an  increase  in  salary  provided 
for  by  an  act  of  1891.^^^  Here  it  was  clear  that  private  rights 
had  arisen  under  existing  laws,  and  for  that  reason  an  answer 
was  refused,  on  the  authority  of  In  the  matter  of  the  Constitu- 
tionaUty  of  SB.  No.  65,  12  Colorado,  466  (!).  This  was  fol- 
lowed, under  similar  circumstances,  in  four  cases,^^  in  the 
first  of  which  an  actual  Utigation  at  an  early  date  seemed  quite 
probable,  and  an  opinion  would  have  been  ex  parte.  In  another 
refusal,  the  court  said  private  rights  "may  have  arisen  or 
attached  which  should  not  be  determined  (!)  in  a  purely  ex 
parte  proceeding, "  and  then  added  that,  "  so  far  as  the  vaHdity  of 
legislation  is  involved,  in  response  to  legislative  questions,  it  is 
confined  to  proposed  acts,  in  order  that  unconstitutional  legis- 
ts* In  re  Election  of  District  Judges,  11  Colo.  373;  In  re  SR.  Relating 
to  SB.  No.  45,  12  Colo.  339;  In  re  HR.  Relating  to  HB.  No.  218,  12  Colo. 
359;  and  In  re  Question  Propounded  by  the  Governor,  12  Colo.  399. 

^*^  In  re  General  Appropriation  Bill,  16  Colo.  539;  In  re  Contracting 
of  State  Debt  by  Loan,  21  Colo.  399;  In  re  Casual  Deficiency,  21  Colo.  403; 
and  In  re  Questions  of  the  Governor,  55  Colo.  17. 
"8  In  re  HR.  No.  25,  15  Colo.  602. 
"'  In  re  Penitentiary  Commissioners,  19  Colo.  409;  In  re  Appointments 


200     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT  J 

lation  may  be  avoided,  and  cannot  call  for  a  construction  of 
acts  already  passed.  "^^°  Here  the  rule  is  laid  down  quite  badly 
(though  obiter)  altogether  apart  from  questions  of  private 
rights.^®^  The  question  of  private  rights  and  the  construction 
of  existing  statutes  are  plainly  associated  in  the  most  recent 
refusal  of  the  Colorado  justices/^^  but,  curiously  enough,  none 
of  the  above  cases  is  mentioned,  and  the  doctrine  is  rested 
upon  33  Colorado,  307  (!).  It  is  impossible  to  say  whether  or 
not  this  alleged  rule  was  responsible  for  this  refusal,  for  the 
justices  also  objected  to  the  absence  of  any  pending  bill,  on 
the  insecure  authority  of  12  Colorado,  466.  On  the  other 
hand,  statutes  have  been  construed  even  where  it  is  almost 
certain  that  private  rights  must  have  arisen,  once  in  a  special 
exigency,  with  a  warning  that  it  was  not  a  precedent,^^  five 
times  with  no  reservations  at  all.^^  Also  in  two  instances, 
the  justices  stated  general  principles  leaving  the  interrogator 
to  apply  them  to  particular  statutes.^^^ 

Thus  it  appears  that  even  in  Colorado  the  weight  of  prece- 
dent is  against  the  rule,  though  it  might  be  replied  that  in  the 

by  the  Governor,  etc.,  21  Colo.  14;  In  re  Constitutionality  of  SB.  No.  196, 
23  Colo.  508;  and  In  re  Leasing  of  State  Lands,  27  Colo.  99. 

i«o  In  re  SR.  No.  4,  54  Colo.  262. 

161  So  too  in  In  re  University  Fund,  18  Colo.  398. 

I'^In  re  Interrogatories  of  the  House,  162  Pac.  114i. 

iwBut  inasmuch  as  the  rights  of  the  public  are  involved,  and  the 
interests  of  the  State  institutions  concerned  are  so  vitally  afifected,  and  the 
results  to  them  would  be  so  disastrous  were  the  answer,  which  we  feel  con- 
strained to  give,  withheld  until  after  the  present  session  of  the  legislature, 
we  have  concluded  to  depart  from  such  practice  and  answer  the  question 
submitted.  This,  however,  must  not  be  taken  as  a  precedent  for  the  right 
in  general  of  the  legislature  to  ask  for  information  as  to  the  constitutionality 
of  an  existing  act. " — In  re  Constitutionality  of  an  Act,  21  Colo.  46. 

1"  In  re  Board  of  Capitol  Commissioners,  18  Colo.  220;  In  re  Leasing 
of  State  Lands,  18  Colo.  359;  In  re  Certificates  of  Indebtedness,  18  Colo. 
566;  In  re  Canal  Certificates,  19  Colo.  63;  and  In  re  Questions  by  the  Gover- 
nor, 55  Colo.  105. 

i«*  In  re  Appropriations  by  General  Assembly,  13  Colo.  316;  and  In 
re  Continuing  Appropriations,  18  Colo.  192  (here  a  case  was  pending  in 
the   supreme   court.) 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  201 

cases  where  opinions  were  given,  the  rule  was  simply  waived, 
not  rejected.  But  in  other  States,  the  practice  is  overwhel- 
mingly against  it.  In  Massachusetts,  New  Hampshire,  Maine, 
Rhode  Island  and  South  Dakota,  there  have  been  ninety-seven 
opinions  where  the  construction  of  existing  statutes  was  called 
for,  and  not  once  has  this  been  alleged  as  a  reason  for  with- 
holding advice.  The  same  is  true  of  six  extra-constitutional 
opinions.^^  The  rule  had  no  place  in  the  English  practice,^^' 
and  existing  legislation  is  expHcitly  mentioned  in  the  Canadian 
advisory  opinion  statutes.^^^ 

In  theory,  too,  the  rule  is  unsound.  If  the  possibiHty 
that  private  rights  will  accrue  under  a  statute  is  a  good  reason 
for  decHning  to  construe  it  in  an  advisory  capacity,  it  is  not 
perceived  why  pending  legislation  should  not  fall  under  the 
ban.  Why  should  an  opinion  of  a  particular  provision,  pro- 
nounced after  its  enactment,  give  any  more  trouble  to  a  judge 
or  result  in  any  greater  prejudice  to  private  rights  than  if  it 
were  pronounced  before  its  enactment?  As  a  matter  of  policy, 
if  the  justices  can  ehminate  a  great  deal  of  Ktigation  in  advance, 
by  indicating  their  expert  views  on  legislative  acts,  why  should 
they  not  do  so?  Why  should  it  be  necessary  for  the  people 
to  run  the  risk  of  error  in  matters  that  often  are  not  settled 
for  years  after  a  statute  is  passed?^^^  But,  we  are  reminded, 
extra-judicial  opinions  would  not  settle  these  questions  anyway, 

»««Opm.  of  the  Judges,  etc.,  30  Conn.  591;  In  re  Babcock,  21  Nebr. 
500;  In  re  Appropriations  for  Deputies,  etc.,  25  Nebr.  662;  In  re  Quaere, 
etc.,  31  Nebr.  262;  In  re  Board  of  Purchase  and  Supplies,  etc.,  37  Nebr. 
425;  and  Opin.  of  the  Judges,  etc.,  37  Vt.  665. 

"'  Macqueen,  House  of  Lords,  p.  53;  cf,  opinions  of  the  Lords  in  Mc- 
Naghten's  Case,  10  CI.  and  Fin.,  200. 

"*  Nearly  all  the  Canadian  opinions  involve  the  construction  of  statutes, 

*''"It  may  be  thought,  and  the  impression  will  be  confirmed  when 
we  consider  as  well  the  minuteness  of  the  State  Constitutions  as  the  pro- 
fusion of  State  legislation  and  the  inconsiderate  haste  with  which  it  is 
passed,  that  as  the  risk  of  a  conflict  between  the  Constitution  and  statutes 
is  great,  so  the  inconveniences  of  a  system  imder  which  the  citizens  can- 
not tell  whether  their  obedience  is  or  is  not  due  to  a  statute  must  be  serious. 


202      DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

since  they  have  no  binding  force.  That  is  true,  but  they  would 
measurably  diminish  the  chance  of  error,  for,  as  a  rule,  they 
are  remarkably  sound;  as  will  be  seen,^^°  they  are  commonly 
cited  in  regular  cases,  and  have  rarely  been  overruled  in 
later  cases  dealing  with  the  same  subject  matter.  It  might 
be  added  that  even  the  regular  decisions  of  our  supreme  courts 
do  not  irrevocably  settle  questions  of  law,  for  they  are  occa- 
sionally rejected  by  a  later  court.  Again,  not  only  is  it  possi- 
ble that  years  may  pass  before  the  judicial  attitude  towards 
particular  statutes  is  ascertained  in  the  ordinary  course  of 
events,^^^  but  there  are  many  questions  which  it  is  quite  difficult 
to  get  before  the  courts  in  litigated  cases  at  all.  Finally,  it 
may  be  added,  that  in  so  far  as  the  rule  is  defended  on  the 
ground  of  an  alleged  interference  with  private  rights,  the  argu- 
ments already  urged  against  the  ex  parte  objection  are  in  point, 
(e)  Questions  referred  by  the  legislature  for  advisory  opinions 
must  be  publici  juris.  (?)  This,  too,  is  a  rule  which  is  practically 
limited  to  the  Colorado  practice.  There  are  but  two  vague 
suggestions  of  it  in  other  States.     In  the  earliest  New  Hampshire 


How  is  a  man  to  know  whether  he  has  really  acquired  a  right  under  a 
statute?  How  is  he  to  learn  whether  to  conform  his  conduct  to  it  or  not? 
How  is  an  investor  to  judge  if  he  may  safely  lend  money  which  a  statute  has 
empowered  a  community  to  borrow,  when  the  statute  may  be  itself  subse- 
quently overthrown?" — Bryce,  Amer,  Commonwealth,  Pt.  II,  Ch.  37. 

1''°  See  pp.  234-236  infra. 

^'^"To  settle  at  once  and  forever  a  disputed  point  of  constitutional 
law  would  often  be  a  gain  both  to  private  citizens  and  to  the  organs  of  the 
government.  Under  the  present  system  there  is  no  certainty  when,  if 
ever,  such  a  point  will  be  settled.  Nobody  may  care  to  incur  the  trouble 
and  expense  of  taking  it  before  the  court.  A  suit  which  raises  it  may  be 
compromised  or  dropped.  When  such  a  question,  after  perhaps  the  lapse 
of  years,  comes  before  the  supreme  court  and  is  determined,  the  determina- 
tion may  be  different  from  what  the  legal  profession  has  expected,  may  alter 
that  which  has  been  believed  to  be  the  law,  may  shake  or  overthrow  private 
interests  based  upon  views  now  declared  to  be  erroneous." — Bryce,  Amer. 
Commonwealth,  I,  p.  352. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  203  > 

case/^-the  justices  said:  "We  are  inclined  to  believe  that  the 
constitution  of  this  state  did  not  contemplate  that  the  opinion 
of  the  justices  of  the  superior  court  should  be  required  upon 
a  mere  question  of  right  between  the  legislature  and  individuals, 
but  upon  important  questions  of  a  nature  altogether  pubUc." 
But  they  were  embarrassed  here  by  the  ex  parte  nature  of  the 
inquiry,  and  there  are  many  later  New  Hampshire  opinions 
upon  questions  by  no  means  altogether  pubHc  in  their  nature. 
A  question  almost  identical  with  that  m  62  New  Hampshire, 
704,  was  referred  to  the  Missouri  justices  in  1865  ;^^^  an  opinion 
was  refused  for  the  reason  that  the  question  was  too  vague  and 
general,  but  the  justices  seized  the  opportunity  to  announce 
that  "questions  should  be  important  in  reference  to  the  pubUc 
interest."  As  in  New  Hampshire,  the  test  was  not  observed 
in  later  cases,  and  was  not  mentioned  again  in  this  form. 

The  cause  for  its  appearance  in  Colorado  is  not  far  to  seek. 
Unfortunately,  the  advisory  opinion  was  incorporated  into 
the  constitution  as  an  amendment  to  the  article  which  gave 
the  supreme  court  "power  to  issue  writs  of  habeas  corpus, 
mafidamus,  quo  warranto,  certiorari,  injunction,  and  other 
original  and  remedial  writs. "  The  court  had  already  held  that 
this  original  jurisdiction  of  the  court  should  only  be  used  in 
cases  involving  questions  publici  juris,  i.e.,  "where  the  interest 
of  the  state  at  large  is  directly  involved;  where  its  sovereignty 
is  violated,  or  the  Uberty  of  its  citizens  menaced;  where  the 
usurpation  or  the  illegal  use  of  its  prerogatives  or  franchises 
is  the  principal,  and  not  a  collateral,  question.  "^'^  In  the 
1889  case  to  which  we  have  so  often  referred,^^^  Helm,  C.  J.,  began 
his  exposition  of  the  advisory  opinion  clause  by  saying  it  was 
merely  an  enlargement  of  the  original  jurisdiction  granted 
in  Article  VI,  section  3,  in  the  first  place,  adding  to  the  Ust  of 

"2  0pm.  of  the  Court,  62  N.  H.  704. 

"'Advisory  Constitutional  Opinion,  etc.,  37  Mo.  135. 

""  WTieeler  v.  No.  Colo.  Irr.  Co.,  9  Colo.  248. 

"*  In  the  matter  of  the  ConstitutionaUty  of  SB.  No.  65,  12  Colo.  466. 


204     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

writs  there  specified  "an  unique  and  important  proceeding.'* 
Referring  to  Wheeler  v.  Northern  Colorado  Irrigation  Company, 
he  continued:  "All  of  the  reasons  relied  upon  for  confining  the 
writs  specified  in  section  3  of  Article  VI  to  questions  puhlici 
juris  apply  with  even  greater  force  to  the  novel  proceeding 
authorized  by  the  provision  before  us;  for,  while  this  proceeding 
is  original,  and  in  that  respect  similar  to  the  other  original  pro- 
ceedings referred  to,  yet  it  possesses  characteristics  peculiar 
to  itself.  Not  only  should  its  operation  be  confined  to  questions 
puhlici  juris,  but,  as  we  shall  endeavor  to  show,  even  questions 
of  this  character  should  rarely  be  presented  or  considered.  It 
will  be  observed  that  the  authority  conferred  is  accompanied 
by  an  express  limitation.  While  the  question  must  be  one 
relating  to  purely  public  rights,  it  can  only  be  propounded 
upon  solemn  occasions,  and  it  must  possess  a  peculiar  or  in- 
herent importance  not  belonging  to  all  questions  of  the  kind. " 
Finally  he  stated  the  rule:  "We  are  of  the  opinion  that  execu- 
tive questions  must  be  exclusively  juris  puhlici,  and  that  legis- 
lative questions  must  be  connected  with  pending  legislation, 
and  relate  either  to  the  constitutionaUty  thereof  or  to  matters 
connected  therewith  of  purely  public  right."  The  court  has 
in  effect  interpolated  the  phrase  ^^  puhlici  juris''  into  a  sentence 
that  is  perfectly  clear  and  reasonable  without  it.  It  is  a  clear 
case  of  judicial  legislation.  It  would  be  as  reasonable  to  argue 
that,  because  the-  advisory  opinion  requirement  is,  in  Rhode 
Island,  included  in  the  same  section  with  a  provision  for  the 
instruction  of  juries,  therefore  the  advisory  opinion  practice 
should  be  limited  by  the  doctrines  of  the  law  of  jury  instruc- 
tion. The  advisory  opinion  clause  was  placed  in  Article  VI, 
section  3,  of  the  Colorado  constitution  for  the  obvious  reason 
that  it  provided  for  the  exercise  of  an  original  jurisdiction, 
and  that  section  is  the  only  section  dealing  with  original  juris- 
diction. It  is  true  that  it  is  an  enlargement  of  original  juris- 
diction, but  why  does  it  follow  that  it  is  an  enlargement  of 
the  particular  original  jurisdiction  already  granted  and  is  sub- 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  205 

ject  to  all  the  constitutional  and  judicial  restrictions  imposed 
thereon? 

A  cursory  examination  of  the  Colorado  opinions  will  show 
that  there  has  been  no  consistent  conformity  to  the  rule.  Many 
times  advice  has  been  given  on  questions  that  are  far  from 
satisfying  the  definition  of  matters  puhlici  juris  given  in  Wheeler 
V.  Northern  Colorado  Irrigation  Company,  9  Colorado,  248. 
However,  the  test  has  been  applied  several  times,^^^  and 
has  in  three  instances  possibly  brought  about  refusals.^"  In 
these  latter  cases,  other  reasons  are  also  assigned  for  an  un- 
wilUngness  to  advise,  so  that  it  is  doubtful  whether  there  is 
a  single  precedent  since  In  the  matter  of  the  ConstitutionaUty 
of  SB.  No.  65,  12  Colo.  466,  which  unquestionably  supports 
the  rule. 

4.  It  is  not  necessary  that  questions  referred  for  advisory  opinions 
should  he  of  a  judicial  nature. 

The  contrary  was  asserted  obiter  in  a  single  Missouri  case 
of  1865:  "It  must  be  in  its  own  nature,  a  judicial  question, 
the  final  determination  of  which,  by  the  organic  frame  of  our 
Government,  properly  belongs  to  the  Judiciary.  "^^^  But  this 
cannot  be  right;  all  questions  of  law  are  not  questions  which  the 
judiciary  can  finally  decide.  The  other  two  departments 
are  entrusted  with  the  determination  of  many  questions  of 
a  legal  nature,  and  if  the  constitution  permits  them  to  seek 
the  assistance  of  the  judges  in  deaHng  with  these  questions, 
it  is  not  admissible  to  add  the  qualification  quoted  above. 
There  is  undoubted  authority  for  the  rule  in  Massachusetts 
and  New  Hampshire.  In  1878,  the  Massachusetts  justices 
were  asked  to  advise  as  to  the  power  of  the  senate  to  originate 

"*  In  re  Funding  of  County  Indebtedness,  15  Colo.  421;  In  re  Speaker- 
ship, etc.,  15  Colo.  520;  and  In  re  SR.  No.  10,  etc.,  ZZ  Colo.  307. 

1"  In  re  HB.  No.  99,  etc.,  26  Colo.  140;  In  re  SB.  No.  27,  etc.,  28  Colo. 
359;  and  In  re  Interrogatories  of  the  Senate,  54  Colo.  166. 

^"  Advisory  Constitutional  Opinion,  etc.,  37  Mo.  135. 


206     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

appropriation  bills.^^^  This  was  certainly  a  question  not 
within  the  jurisdiction  of  the  justices,  but,  after  a  careful 
review  of  the  precedents  in  England  and  Massachusetts,  they 
concluded  that  "it  has  never  been  considered  essential  that  the 
questions  proposed  should  be  such  as  might  come  before  them 
in  their  judicial  capacity,"  and  gave  the  opinion  requested. 
The  New  Hampshire  case  involved  the  power  of  a  legislature 
to  elect  a  United  States  senator,^^^  a  power  plainly  beyond 
judicial  control;  but  an  answer  was  given  and  the  Massachu- 
setts case  cited  with  approval.  There  are  scores  of  cases 
where  opinions  were  rendered  unquestioningly  on  similar 
matters. 

5.  The  lack  of  legal  assistance  is  not  sufficient  excise  for  declining 

to  give  advisory  opinions. 

Often  the  justices  of  our  supreme  courts  have  deplored  the 
fact  that,  in  exercising  the  advisory  function,  they  did  not  enjoy 
the  valuable  assistance  of  professional  briefs  and  argument. 
They  have  referred  to  this  deprivation  as  a  reason  why  advisory 
opinions  should  not  be  binding  upon  them  but  should  always 
be  open  to  reconsideration,^®^  as  a  reason  for  caution  in  giving 
such  opinions  only  when  necessary,^®^  and  as  a  reason  why  the 
conclusions  in  advisory  opinions  are  entitled  to  less  respect 
than  those  reached  in  regular  cases,^^  or  are  more  subject  to 
error.^^    In  no  case  has  a  refusal  been  based  upon  it;  but  the 

1"  Opin.  of  the  Justices,  126  Mass.  557. 
18°  Opin.  of  the  Court,  60  N.  H.  585. 

181  Green  v.  Commonwealth,  12  Allen,  155;  Opin.  of  the  Justices,  etc., 
25  N.  H.  537;  In  re  Opin.  of  the  Justices,  76  N.  H.  597;  Opin.  of  the  Justices, 
58  Me.  590;  and  Taylor  v.  Place,  4  R.  I.  324. 

182  In  re  Bounties  to  Veterans,  186  Mass.  603;  In  re  Opin.  of  the  Justices, 
190  Mass.  611;  In  the  matter  of  Senate  Resolution  on  the  Subject  of  Irri- 
gation, 9  Colo.  620;  In  re  Construction  of  Constitution,  3  S.  D.  548;  and 
In  re  Board  of  Purchase  and  Supplies,  etc.,  37  Nebr.  425. 

183  Opin.  of  the  Justices,  16  Me.  479. 

18*  In  the  matter  of  the  Constitutionality  of  SB.  No.  65,  12  Colo.  466; 
In  re  Appropriations  by  Genera  Assembly,  13  Colo.  316;  and  In  re  Railroad 
Commissioners,  15  Nebr.  679. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  207 

complaint  itself  is  unnecessary.  The  justices  are  not  prevented 
from  requesting  argimaent  by  the  counsel  of  parties  interested. 
In  fact  we  have  seen  that  they  have  often  heard  such  argu- 
ments.^^ Also,  they  can  surely  command  the  assistance  of 
amici  curiae  in  time  of  need.  This  has  been  done  in  New  Hamp- 
shire^^ and  Nebraska/^^  and  is  a  very  common  practice  in 
Colorado,^^^  where  it  is  an  important  factor  in  many  opinions.^^^ 
In  one  instance  an  opinion  was  refused  partly  because  the 
time  permitted  was  insufficient  for  full  argument  and  con- 
sideration.i^°  It  is  scarcely  true  then,  as  stated  by  a  Massa- 
chusetts justice,^^^  that  the  justices  are  necessarily  without 
legal  aid,  or  that  "It  is  impossible  that  there  should  be  an 
argument.  "^^ 

6.  The  importance  of  a  question  and  the  solemnity  of  an  occasion 
are  relative  matters  depending  upon  the  circumstances  of  each 
partictdar  interrogatory. 

The  assumption  of  a  discretion  to  refuse  advisory  opinions 
if  the  reference  did  not  disclose  an  important  question  and  were 
not  made  upon  a  solemn  occasion,^^^  called  for  the  development 

^8*  See   pp.    190-192   supra. 

i8«  Opin.  of  the  Justices,  53  N.  H.  640. 

1"  In  re  Senate  File  31,  25  Nebr.  864;  and  In  re  House  Roll  284,  31 
Neb  r.  505. 

^^^  Amici  curiae  have  appeared  in  at  least  forty-one  cases  to  date. 

"•  Cf.  the  words  of  Hayt,  C.  J.,  in  Parks  v.  Soldiers'  and  Sailors'  Home, 
22  Colo.  86:  "As  some  of  the  opinions  to  which  reference  has  been  made 
were  delivered  in  answer  to  questions  propoimded  by  the  executive,  it  is 
perhaps  well  to  say,  in  passing,  that  it  must  not  be  assiuned  for  this  reason 
that  full  argument  was  not  heard  by  the  court,  or  that  the  opinions  were 
pronounced  except  upon  the  most  careful  consideration.  ...  No  cause 
which  has  been  determined  by  this  court  in  recent  years  has  received  more 
serious  consideration  than  did  the  examination  of  those  interrogatorief? 
propounded  by  the  executive." 

19°  In  re  SB.  No.  416,  45  Colo.  394. 

"1  In  re  Opin.  of  the  Justices,  190  Mass.  611. 

»«  Story,  J.,  in  Deb.  Mass.  Conv.  1820,  p.  489. 

i^See  pp.    168-176  supra. 


208      DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

of  rules  for  testing  importance  and  solemnity.  Only  one  such 
rule  has  found  much  favor  (see  next  section).  The  justices 
soon  admitted  that  it  was  difficult  to  generalize,  to  frame  a 
definition  "which  will  fully  cover  every  case  which  may  arise, "^^ 
and  began  to  test  each  case  on  its  merits.  So  the  only  tangible 
harvest  from  the  refusals  founded  on  this  discretion  is  a  col- 
lection of  paraphrases^^^  and  the  rule  which  follows.  This 
state  of  affairs  in  itself  is  an  argument  against  the  right  of  the 
judges  to  pass  upon  the  meaning  of  the  phrases  in  question; 
for  the  failure  to  estabUsh  definite  rules  leaves  the  other  depart- 
ments completely  at  a  loss  to  know  when  they  can  obtain 
extra-judicial  counsel  and  when  not — one  constitutionally 
authorized  to  receive  advice  may  be  denied  it  almost  at  the 
whim  of  the  adviser.  If  it  is  true  that  the  importance  of  a 
question  and  the  solemnity  of  an  occasion  are  relative  matters, 
surely  the  facts  upon  which  they  depend  are  within  the  knowl- 
edge of  the  questioner  rather  than  the  questioned. 

7.  The  possibility  of  immediate  executive  or  legislative  action 
on  the  questions  referred  is  not  a  necessary  prerequisite  for 
advisory  opinions. 

Proceeding  upon  the  hypothesis  that  they  are  free  to  refuse 
advisory  opinions,  if  in  their  judgment  the  question  is  not  im- 
portant or  if  the  occasion  lacks  the  proper  solemnity,  the  justices 
of  some  States  have  developed  the  rule  that  the  occasion  of  a 
reference  cannot  be  solemn,  within  the  meaning  of  the  con- 
stitution, unless  an  answer  will  be  of  use  in  a  pending  matter. 
Others  have  said  the  importance  of  a  question  depended  upon 

^^  Functions  of  Judiciary,  148  Ma=s.  623;  Opin.s  of  the  Justices,  95 
Me.  564;  Opin.  of  the  Court,  etc.,  55  Mo.  497;  In  the  matter  of  the  Consti- 
tutionaUty  of  SB.  No.  65,  12  Colo.  466;  and  In  re  Chapter  6,  Sess.  L.  1890, 
8  S.  D.  274. 

^^^  E.g.  "solemn  occasion"  means  some  serious  and  unusual  exigency — 
Functions  of  Judiciary,  148  Mass.  623;  "important  question  and  solemn 
occasion"  calls  for  some  question  of  unusual  magnitude  and  solemn  con- 
cern for  the  public  good — Advisory  Constitutional  Opinion,  etc.,  37  Mo.  135. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  209 

the  same  condition.     In   the  application  of  this  general  test, 
three  particular  rules  have  been  evolved. 

(a)  The  question  mtist  be  one  "which  the  body  making  the 
inquiry  has  occasion  to  consider  in  the  eocercise  of  the  legislative 
or  executive  powers  entrusted  to  them  respectively."'^^  (?)  This 
was  quoted  with  approval,  though  obiter,  in  Opinion  of  the  Jus- 
tices, 126  Massachusetts,  557.  Later  it  was  rephrased  and 
appHed  to  "  questions  propounded  with  a  view  to  further  legis- 
lation on  the  subject  matter  of  the  statutes  .  .  .  referred 
to.  "197  \y^e  iiave  already  noted  that  this  refusal  evoked  an 
emphatic  protest  from  the  house  of  representatives  and  was 
generally  disapproved.^^^  Nevertheless,  the  Massachusetts 
justices  continued  to  apply  the  test  to  questions  both  from  the 
legislature^^^  and  from  the  governor  and  council,^^  and  in  two 
instances  withheld  opinions  when  the  questions  failed  to  mea- 
sure up  to  the  test.2°^  Two  refusals  have  been  due  to  the  same 
test  in  New  Hampshire,^^^  while  it  was  applied  with  results 
favorable  to  the  interrogator  in  a  few  other  cases.^°^  It  appeared 
in  that  State  in  a  milder  form  than  in  Massachusetts,  the  jus- 
tices indicating^®*  that  if  a  question  submitted  did  not  have 

i9«  Opin.  of  the  Justices,  122  Mass.  600. 

^^"  "By  a  solemn  occasion  the  constitution  means  some  serious  andam- 
usual  exigency.  It  has  been  held  to  be  such  an  exigency  when  the  governor 
or  either  branch  of  the  legislature  having  some  action  in  view  has  serious 
doubts  as  to  their  power  and  authority  to  take  such  action  under  the  consti- 
tution, or  under  existing  statutes." — Functions  of  Judiciary,  148  Mass.  623. 

198  See  p.  170  supra. 

19*  In  re  Opin.  of  the  Justices,  190  Mass.  611;  and  In  re  Opin.  of  the 
Justices,  211  Mass.  608. 

20°  In  re  Opin.  of  the  Justices,  216  Mass.  605. 

"1  In  re  Opin.  of  the  Justices,  etc.,  208  Mass.  614;  and  In  re  Opin.  of 
the  Justices,  211  Mass.  630. 

■^-  Opin.  of  the  Justices,  67  N.  H.  601;  and  In  re  Opin.  of  the  Justices, 
76  N.  H.  597. 

2<»In  re  Opin.  of  the  Justices,  73  N.  H.  625;  and  In  re  0pm.  of  the 
Justices,  74  N.  H.  606. 

*<"  Opm.  of  the  Court,  60  N.  H.  585. 


210  DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

to  be  determined  in  the  performance  of  legislative  or  executive 
duties,  this  was  evidence  that  it  was  not  an  important  question. 
Again,  in  1906,^°^  they  stated  that  it  was  sufficient  if  the  in- 
terrogator may  be  called  upon  to  act  in  matters  necessarily- 
involving  the  question.  Also,  in  applying  the  test,  they  have 
displayed  a  good  deal  of  laxity,  sometimes  presuming  an  inten- 
tion to  take  official  action  when  the  inquiry  disclosed  no  such 
intention.^^®  The  same  course  has  been  pursued  in  Massachu- 
setts as  well.2°'  Nowhere  else  has  the  test,  expressed  in  such 
general  terms,  found  a  foothold,  though  there  are  a  few  dicta 
in  its  favor.  In  Statement  and  Questions  Submitted,  etc., 
70  Maine,  600,  the  justices,  referring  to  an  earUer  case,  say: 
"To  put  such  questions,  in  the  absence  of  facts  requiring  their 
solution,  would  be  an  abuse  of  the  power  of  an  executive  to 
call  for  the  opinion  of  the  court  upon  questions  of  law,  on  solemn 
occasions."  But  they  were  laboring  under  the  impression^^* 
that  the  governor  was  bound  to  foUow  their  advice.^^^  There  is 
also  a  minority  approval  of  Opinion  of  the  Justices,  122  Massa- 
chusetts, 600,  (not  resulting  in  a  refusal,  however)  in  Ques- 
tion Submitted,  etc.,  72  Maine,  542.  Finally  the  test  is 
enunciated  obiter  in  Advisory  Constitutional  Opinion,  etc.,  37 
Missouri,  135. 

(b)  Legislative  questions  must  be  connected  with  a  pending 
bill.  (?)  This  constriction  of  the  test  is  peculiar  to  Colorado, 
and  the  test  appears  in  no  other  form  in  that  State.  The  germ 
of  it  is  probably  the  statement  in  In  the  matter  of  Senate 
Resolution  on  the  Subject  of  Irrigation,  9  Colorado,  620,  that 
the  purpose  of  the  advisory  opinion  amendment  could  not  have 

206  In  re  Opin.  of  the  Justices,  73  N.  H.  621. 

206Opin.  of  the  Justices,  72  N.  H.  601;  Opin.  of  the  Justices,  72  N.  H. 
605;  and  In  re  Opin.  of  the  Justices,  75  N.  H.  613. 

207  In  re  Opin.  of  the  Justices,  190  Mass.  611;  In  re  Opin.  of  the  Jus- 
tices, 211  Mass.  608;  and  In  re  Opin.  of  the  Justices,  216  Mass.  605. 

208  Statement  and  Questions  Submitted,  etc.,  70  Me.  570. 
2o»The  same  is  true  in  In  re  HR.  No.  30,  10  S.  D.  249. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  211 

been  "to  exact  in  response  to  a  legislative  inquiry  a  wholesale 
exposition  of  all  constitutional  provisions  relating  to  a  given 
general  subject,  in  anticipation  of  the  possible  introduction 
or  passage  of  measures  bearing  upon  particular  branches  of 
such  subject."  The  justices  went  on  to  say  that  the  matters 
mentioned  did  not  appear  to  be  covered  by  any  pending  acts 
and  that  they  were  involved  in  cases  then  before  the  courts. 
This  was  a  perfectly  sound  reason  for  the  refusal;  but  that  these 
same  justices  did  not  intend  to  make  the  existence  of  a  pending 
bUl  an  absolute  test  for  legislative  inquiries  may  be  seen  from 
their  replies  in  other  cases  where  no  bills  were  pending.^^^  Yet 
it  was  quoted  as  an  absolute  test  in  1888,^^  though  the  existence 
of  a  pending  bill  was  assumed  in  that  case.^^  Stated  in  this 
form,  it  was  incorporated  in  Helm,  C.  J.,'s  sweeping  exposition 
of  the  advisory  clause  in  In  the  matter  of  the  Constitutionahty 
of  SB.. No.  65,  12  Colorado,  466,  and  so  into  the  later  practice. 
This  rule,  too,  was  bolstered  up  by  a  reference  to  the  assumed 
intention  of  the  framers  of  the  amendment  and  to  the  con- 
temporary practice.  The  latter  argiunent  is  far  from  convin- 
cing here,  for  of  the  seventeen  questions  referred  by  the  legis- 
ture  of  1887,  six  were  not  connected  with  pending  bills,  and 
only  one  was  denied  an  answer  (on  other  grounds  at  that).  The 
test  is  reasserted  in  seven  or  eight  later  cases,  but  wherever 
it  is  attended  by  a  refusal,  other  reasons  are  also  given.^^  It 
has  been  stretched  to  mean  that  there  must  be  a  strong  proba- 
biUty  that  the  bill  will  pass  as  submitted  to  the  supreme  court,^" 

210  In  the  matter  of  Senate  Resolutions,  etc.,  9  Colo,  626;  In  the  matter 
of  House  Resolution,  etc.,  9  Colo.  622;  In  re  Senate  Resolution,  etc.,  9  Colo. 
630;  and  Veto  Power,  9  Colo.  642. 

-11  The  only  justice  left  over  from  the  1887  court  was  Helm  who  had 
now  become  chief  justice. 

"2  In  re  SR.  Relating  to  Internal  Improvement  Fvmd,  etc.,  12  Colo.  285. 

213  In  re  a  Bill,  etc.,  21  Colo.  29;  In  re  Bill,  etc.,  23  Colo.  504;  In  re  HB. 
No.  495,  etc.,  26  Colo.  182;  In  re  SR.  No.  7,  29  Colo.  350;  In  re  SB.  No.  416, 
45  Colo.  394;  and  In  re  SR.  No.  4,  54  Colo.  262;  In  re  Interrogatories  of 
the  House,  162  Pac.  1144. 

2"  In  re  a  Bill,  etc.,  21  Colo.  29. 


212  DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

and  then  that  it  must  have  at  least  passed  the  house  in  com- 
mittee of  the  whole  or  on  a  second  reading,^^^  and  that  further 
amendments  are  not  in  contemplation.^^®  On  the  other  hand 
an  opinion  has  been  refused  after  the  bill  has  passed  the  third 
reading.^^'  If  all  these  limitations  were  accepted  as  valid, 
legislative  questions  could  be  put  only  when  bills  had  reached 
their  final  form  and  were  practically  certain  of  passing  upon 
the  third  reading  if  the  constitutionaHty  were  approved  by 
the  supreme  court.  This  may  or  may  not  be  desirable,  but  it 
is  certainly  difiicult  to  start  from  the  advisory  opinion  clause 
and  reach  such  a  conclusion.  Not  only  is  there  no  clear-cut 
precedent  in  Colorado  for  test  (b),  but  many  times  the  justices 
have  answered  legislative  inquiries  that  were  not  within  the 
test,  and  without  demurring.^^*^  There  is  a  single  case  in 
Massachusetts  where  this  same  test  was  suggested,  the  justices 
stating  that  "a  definite  enactment  to  a  specific  end  must  be 
under  serious  consideration  before  it  can  be  said  that  a  ^solemn 
occasion'  has  been  presented  within  the  meaning  of  those  words 
in  the  Constitution.  "^^^  But  here  the  real  reason  for  decHning 
an  answer  was  that  the  questions  were  too  general,  calHng  "in 
substance  for  an  exposition  of  the  Constitution  relating  to  the 
powers  of  taxation."  The  situation  is  quite  similar  to  that  in 
In  the  matter  of  Senate  Resolution  on  the  Subject  of  Irrigation, 
9  Colorado,  620,  except  that  there  is  no  mention  of  pending 
cases. 

215  In  re  Bill,  etc.,  23  Colo.  504;  In  re  HB.  No.  495,  26  Colo.  182;  and 
In  re  SR.  No.  7,  29  Colo.  350. 

2i«  In  re  Bill,  etc.,  23  Colo.  504. 

217  In  re  SB.  No.  416,  45  Colo.  394;  cf.  In  re  Senate  Resolution,  etc.,  9 
Colo,  630,  and  In  re  Consolidation  of  School  Districts,  23  Colo.  499. 

218  In  addition  to  the  1887  cases  cited  in  note  210  supra,  cf .  In  the  matter 
of  House  Resolution,  etc.,  12  Colo.  186;  In  re  Senate  Resolution,  etc.,  12 
Colo.  187;  In  re  HR.  No.  25,  15  Colo.  602;  In  re  Emergency  Clause,  18 
Colo.  291;  In  re  Consolidation  of  School  Districts,  23  Colo.  499;  and  In  re 
SR.  No.  10,  etc.,  3Z  Colo.  307. 

219  In  re  Opin.  of  the  Justices,  217  Mass.  607.  The  recent  refusal  of 
In  re  Opin.  of  the  Justices,  115  N.  E.  921  (Mass.),  was  based  in  part  upon 
the  rule  we  are  now  considering. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  213 

(c)  Opinions  will  not  be  given  after  the  adjournment  of  the 
interrogating  legislature  or  the  end  of  the  term  of  the  interrogating 
executive.  (?)  There  is  practically  just  one  authority  for  this 
proposition — an  executive  reference  in  New  Hampshire.^* 
It  was  asserted  for  the  legislature  in  Opinions  of  the  Justices, 
95  Maine,  564;^^  but  there  was  a  cogent  dissenting  opinion 
in  that  instance,  the  justices  pointing  out  that  this  was  a  novel 
doctrine,  that  it  was  often  necessary  and  practical  for  legisla- 
tures to  obtain  opinions  beforehand  so  as  to  avoid  errors,^ 
and  that  many  opinions  had  been  returned  after  an  adjourn- 
ment.^ The  majority  doctrine  may  perhaps  be  regarded  as 
superseded  by  In  re  Opinion  of  the  Justices,  103  Maine,  506. 

There  are,  then,  only  six  cases  (three  in  Massachusetts 
and  three  in  New  Hampshire)  where  it  is  clear  that  a  refusal 
was  based  upon  the  tests  we  are  considering.  i\part  from  the 
scores  of  cases  where  advice  would  have  been  replaced  by  non- 
compliance had  the  tests  been  appUed,  there  are  also  instances 
where  the  justices  have  openly  objected  to  the  tests,  though  it 
be  only  in  minor  opinions.  In  In  re  Interrogatories  of  the 
Senate,  54  Colorado,  166,  Hill,  J.,  and  Scott,  J.,  insisted  that 
the  reference  was  well  within  the  constitution,  although  no 
pending  bill  was  involved.  And  in  Opinions  of  the  Justices, 
95  Maine,  564,  the  three  dissenting  justices  argued  very  forcibly 
against  the  whole  doctrine  that  an  opinion  may  be  refused 

220  Opin.  of  the  Justices,  70  N.  H.  640. 

221  Id  In  re  State  Taxation,  97  Me.  595,  the  same  justices  distinguished 
between  the  recess  separating  the  sessions  of  a  legislature  and  the  interim 
between  two  legislatures. 

222  Even  in  regular  cases  the  New  York  judges  have  given  decisions 
that  could  not  affect  the  particular  case,  "to  prevent  embarrassment  in  the 
future.  "—Matter  of  Madden,  148  N.  Y.  136;  and  Matter  of  Fairchild,  151 
N.  H.  359.  But  they  will  not  do  so  unless  the  question  is  of  general  interest 
and  importance. — Matter  of  Norton,  158  N.  Y.  130. 

223  See  Ust  given  there;  also  Opin.s  of  the  Justices,  etc.,  68  Me.  589; 
Veto  Power,  9  Colo.  642;  and  In  the  matter  oi  the  Constitutionality  of  SB. 
No.  65,  12  Colo.  466. 


214     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

unless  the  interrogator  "has  occasion  to  consider  and  act  upon 
the  questions  submitted,"  as  well  as  against  the  right  of  the 
justices  to  pass  finally  upon  the  solemnity  of  an  occasion.  As 
to  the  first  point  at  any  rate,  the  contrary  argument  of  Savage, 
J.,  was  rejected  in  In  re  Opinion  of  the  Justices,  103  Maine,  506. 
So  that,  even  if  we  admit  the  discretion  claimed  by  some  jus- 
tices, it  is  decidedly  doubtful  whether  the  single  rule  they  have 
evolved  in  the  exercise  of  that  discretion  can  be  supported. 

We  do  not  mean  for  a  moment  to  suggest  that  questions 
having  no  relation  whatever  to  legislative  or  executive  powers 
and  duties  are  reasonably  within  the  scope  of  the  clause.  There 
is  no  reason,  however,  why  they  should  necessarily  relate  only 
to  powers  and  duties  of  which  the  immediate  exercise  is  con- 
templated. Legal  advice  may  be  indispensable  in  the  formula- 
tion of  a  plan  that  may  not  call  for  final  action  for  some  time,  if 
unnecessary  labors  and  errors  are  to  be  avoided.  Information 
as  to  the  state  of  the  law  on  a  particular  point  may  conceivably 
be  of  use  to  the  legislators  at  any  time,  for  they  "may  be  called 
on  ...  to  change  the  law.  "^  Nevertheless,  it  is  perfectly  true 
that,  in  general,  questions  should  be  connected  with  matters 
where  action  is  at  least  in  the  contemplation  of  the  questioner. 
It  would  be  in  violation  both  of  common  sense  and  of  good 
governmental  pohcy  to  make  the  justices  a  consulting  board  on 
any  and  all  abstract  questions  of  an  encyclopedic  nature. 
Still  the  enforcement  of  this  obvious  restriction  should  be  in 
the  hands,  not  of  the  justices,  but  of  the  people.  The  execu- 
tive and  legislative  departments  will  not  often  exceed  the 
bounds  of  reason,  and,  as  many  cases  testify,  will  usually  yield 
gracefully  to  representations  from  the  judiciary  that  the  refer- 
ence is  not  expedient,  and  withdraw  the  questions.  But  if 
they  do  prove  unreasonable  and  intractable,  the  remedy  is  not 
to  place  advisory  opinions  at  the  mercy  of  the  advisers,  but  to 
change  the  personnel  of  the  other  departments  or  introduce 
definite  and  plain  restrictions  into  the  constitutional  clause. 

^  McNaghten's  Case,  10  CI.  and  Fin.,  200. 


INTERPRETATION  OF  ADVISORY  OPIN^ON  CLAUSES  215 

8.  Opinions  may  be  refused  if  the  reference  does  not  indicate  with 
sufficient  definiteness  the  particidar  points  upon  which  infor- 
mation is  desired. 

The  justification  for  this  is  not  to  be  found  in  constitutional 
interpretation.  It  is  a  purely  practical  matter.  The  physical 
abilities  of  human  beings  are  obviously  limited.  One  man  can 
do  so  much  and  no  more.  It  would  be  impossible  for  judges 
to  give  a  proper  attention  to  their  regular  judicial  duties  and 
at  the  same  time  indulge  in  the  general  discussion  of  abstract 
or  hypothetical  questions  from  an  academic  standpoint.  Then, 
too,  questions  may  be  logically  unanswerable  because  of  vague- 
ness. If  information  is  desired  in  connection  with  a  pending 
bill,  it  would  seem  the  part  of  good  sense,  and  is  indeed  the 
common  practice,  to  enclose  a  copy  of  the  bill. 

The  judges  have  shown  a  very  patient  consideration  in 
this  matter.  There  are  only  six  cases  where  a  refusal  has  been 
blamed,  even  in  part,  on  the  general  or  indefinite  nature  of  the 
questions,  and  the  excuse  is  quite  admissible  in  every  instance.^ 
Thus  in  Opinion  of  the  Justices,  etc.,  145  Massachusetts,  587, 
the  governor  and  council  asked  whether  a  set  of  rules  submitted 
for  their  approval  by  the  civil  service  commissioners  would  be 
valid,  and  the  justices  repHed:  "We  have  doubts  whether, 
within  the  fair  intent  of  the  constitution,  the  executive  or 
legislative  departments  can  submit  to  the  justices  a  law  or  a 
series  of  laws  or  rules  more  or  less  compHcated  and  ask  them  to 
examine  and  ascertain  what  questions  can  be  raised  as  to  the 
validity  of  every  clause,  and  to  express  an  opinion  in  advance 
upon  every  such  question."  Again,  in  1912,^  the  council 
referred  this  question:  "When  the  law  calls  for  action  *by  the 
Governor  and  Council,'  is  the  Governor  to  concur  with  a 
majority  of  the  Coimcil  in  order  to  make  its  decisions  effective, 
or  is  he  to  be  considered  a  member  of  the  deciding  body  with 

^  Cf .  also  Attorney-General  for  Ontario  v.  Hamilton  Street  Ry.  Co., 
et  al.,  (1903)  A.  C.  524. 

"« In  re  Opin.  of  the  Justices,  211  Mass.  630. 


216     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

one  vote?"  An  opinion  was  not  given  because  "it  is  impos- 
sible to  determine  from  your  question  whether  the  pending 
matter  is  of  such  a  character  that  we  ought  to  answer."  Two 
years  later  the  legislature  was  refused  a  general  "exposition  of 
the  Constitution  relating  to  the  powers  of  taxation,"  because 
"an  academic  discussion  of  constitutional  principles  upon  a 
subject  so  fundamental  as  that  of  taxation  cannot  be  re- 
quired. "^^  A  fourth  refusal  may  be  found  in  a  Missouri  case^* 
in  which  the  legislature  submitted  "general,  vague  and  unde- 
fined" questions  concerning  legislative  powers  over  corpora- 
tions. The  other  two  refusals  were  in  Colorado  and  were 
occasioned  by  general  questions  as  to  whether  certain  bills 
were  constitutional.^^ 

It  is  clear  from  the  precedents  that  if  the  justices  are  in- 
clined to  deal  generously  with  abstract  or  indefinite  inquiries, 
they  may  follow  one  of  three  plans.  They  may  render  an 
opinion  drawn  up  in  general  terms,  leaving  it  to  the  questioner 
to  make  the  application  to  the  particular  case^^^  or  they  may 
request  that  copies  of  the  pending  bills  involved  be  sent  to 
them,^^  or  that  the  exact  points  upon  which  advice  is  desired, 
be  indicated  in  a  supplementary  communication  .^^  Finally 
they  may  draw  their  own  conclusions  as  to  the  particulars  in 
which  the  interrogator  is  interested  and  submit  an  opinion 

227  In  re  Opin.  of  the  Justices,  217  Mass.  607. 

228  Advisory  Constitutional  Opin,,  etc.,  37  Mo.  135. 

229  In  re  HB.  No.  107,  21  Colo.  32;  and  In  re  SR.  No.  7,  etc.,  29  Colo. 
350  (another  excuse  was  also  given  in  this  case). 

230  Opin.  of  the  Justices,  53  N.  H.  634;  In  re  Opin.  of  the  Justices,  73 
N.  H.  618;  In  re  Opin.  of  the  Justices,  77  N.  H.  611;  In  re  SB.  Providing  for 
a  Board  of  Public  Works,  etc.,  12  Colo.  188;  In  re  University  Fund,  18 
Colo.  398;  In  re  Internal  Improvements,  18  Colo.  317;  and  In  re  Bill,  etc., 
23  Colo.  504;  cf.  In  re  Ontario  Medical  Act,  13  Ont.  L.  R.  501. 

231  Opin.  of  the  Justices,  126  Mass.  557;  and  In  the  matter  of  the  Con- 
stitutionality of  HB.  No.  18,  etc.,  9  Colo.  623. 

232  In  the  matter  of  the  Constitutionality  of  HB.  No.  18,  etc.,  9  Colo. 
623;  In  re  HB.  No.  165,  15  Colo.  593,  595;  In  re  Loan  of  School  Fund,  18 
Colo.  195;  and  In  re  a  Bill,  etc.,  21  Colo.  29. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  217 

thereupon ,233  or  limit  their  counsel  to  points  suggested  in  an 

argument  by  amici  curiae  j^ 

9.  Questions  of  fact  will  not  be  investigated  in  advisory  opinions. 

There  is  no  foundation  for  the  assertion  of  Story,  J.,^  that 
in  advisory  opinions  "  questions  of  fact  and  of  law  may  be  decided 
without  argument  and  without  a  jury. "  As  a  matter  of  fact,  in 
Massachusetts,  as  in  every  other  State  where  the  constitution 
authorized  advisory  opinions  (except  Colorado),  questions 
referred  are  specifically  limited  to  questions  of  law.  The  jus- 
tices have  called  attention  to  this  more  than  once,^  and  have 
refused  plainly  to  pass  upon  questions  of  fact.^^  Even  in 
Colorado,  where  the  constitution  says  "important  questions," 
it  was  stated  as  early  as  1889,^^  that  "for  obvious  reasons  we 
hold  that  the  intent  could  not  have  been  to  authorize  questions 
of  fact;"  and  this  has  been  followed  in  later  cases,  at  least  one 
partial  refusal  being  based  upon  it.^^  Not  infrequently,  "as 
on  a  case  stated"  the  justices  have  rendered  opinions  upon 
the  questions  of  law  involved  in  a  set  of  facts  as  presented  in 
the  inquiry ,^°  but  always  it  has  been  perfectly  clear  that  a 

233  Opin.  of  the  Justices,  9  Cush.  604;  In  re  Opin.  of  the  Justices,  190 
Mass.  611;  Opin.  of  the  Justices,  etc.,  25  N.  H.  537;  In  the  matter  of  the 
Constitutionality  of  HB.  No.  270  and  SBB.  No.  69  and  No.  106,  etc.,  9 
Colo.  635;  In  re  Kindergarten  Schools,  18  Colo.  234;  and  In  re  HB.  No.  203, 
21   Colo.  27. 

23*  Opin.  of  the  Justices,  etc.,  45  N.  H.  593;  In  re  Constitutionality  of 
SB.  No.  69,  15  Colo.  601;  and  In  re  Canal  Certificates,  19  Colo.  63. 

2«  Deb.  Mass.  Conv.  1820,  p.  489. 

^  See  Opin.  of  the  Justices,  126  Mass.  557;  and  Dinan  v.  Swig,  223 
Mass.  516. 

237  Opin.  of  the  Justices,  120  iMass.  600;  and  Opin.s  of  the  Justices, 
etc.,  18  Me.  458. 

238  In  the  matter  of  the  Constitutionality  of  SB.  No.  65,  12  Colo.  466. 

239  In  re  Appropriations  by  General  Assembly,  13  Colo.  316. 
2<oOpin.  of  the  Justices,  5  Mete.  596;  0pm.,  45  N.  H.  607;  Opin.  of 

Justices,  70  N.  H.  638;  In  re  Opin.  of  the  Justices,  76  N.  H.  601;  Opin.  of 
the  Justices,  33  Me.  587;  In  the  matter  of  the  Executive  Conmiunication, 
etc.,  12  Fla.  686;  In  re  Fire  and  Excise  Commissioners,  19  Colo.  '482;  In  re 
Casual  Deficiency,  21  Colo.  403;  and  In  re  HB.  No.  250,  26  Colo.  234. 


218  DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

party  interested  was  quite  free  to  prove  a  different  state  of 
facts  in  any  later  proceeding.^*^  Even  apart  from  the  con- 
stitution, it  would  appear  that  this  is  a  necessary  Hmitation. 
The  justices  have  not  the  facihties,  in  such  consultations,  for 
an  examination  of  the  facts;  they  lack  the  usual  machinery  of  a 
court,  especially  the  jury  which  is  so  important  an  element  in 
the  Anglo-American  theory  of  judicial  ascertainment  of  facts. 

10.  Judicial  notice  may  he  taken  of  facts  not  stated  in  the  inter- 
rogatory. 

This  rule  has  been  appUed  sometimes  when  extrinsic  facts 
would  throw  light  upon  the  cause  for  an  inquiry  and  so  tend 
to  discover  the  particular  points  upon  which  advice  was  needed 
(see  rule  8,  supra).  For  instance  in  Opinion  of  the  Justices, 
9  Gushing,  604,  the  justices  were  guided  by  the  recent  report 
of  the  bank  commissioners  in  concluding  that  the  senate  was 
chiefly  interested  in  only  one  special  corporation  duty.  Again, 
when  the  possibility  of  legislative  action  did  not  appear  in  the 
reference,  the  justices  have  taken  judicial  notice  of  the  introduc- 
tion of  a  bill  upon  the  subject  of  the  inquiry.^  In  Opinion  of 
the  Justices,  56  New  Hampshire,  574,  where  the  house  of  repre- 
sentatives asked  if  the  governor  had  power  to  summon  certain 
candidates  in  a  contested  election,  the  justices  took  judicial 
notice  of  the  fact  that  two  had  already  been  summoned  and 
sworn  in  as  senators  and  so  refused  an  opinion  upon  the  com- 
pleted act  of  the  third  department  of  government.  In  con- 
sidering a  proposed  bill  which  apphed  to  cities  of  over  100,000 
population,  a  Colorado  court  took  notice  of  the  fact  that  Denver 
was  the  only  city  of  the  State  that  would  probably  come  within 
the  act  for  many  years.^^    An  answer  has  been  refused  partly 

2"  See  especially  People  v.  Martin,  and  People  v.  Orr,  19  Colo.  565 : 
"The  court  may  give  its  opinion  upon  the  law  based  upon  the  facts  sub- 
mitted by  the  executive,  but  it  cannot  render  judgment  thereon,  nor  can 
it,  upon  such  questions,  undertake  to  determine  questions  of  fact." 

2«In  re  Opin.  of  the  Justices,  190  Mass.  611. 

2«In  re  ConstitutionaUty  of  SB.  No.  293,  21  Colo.  38. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  219 

for  the  reason  that  the  justices  judicially  knew  that  the  session 
of  the  legislature  would  expire  in  three  days,  which  did  not 
allow  enough  time  for  a  satisfactory  hearing  and  argiunent.^ 
Other  cases  might  be  cited,^  but  perhaps  these  will  sufliciently 
indicate  the  operation  of  the  rule. 

11.  If  an  opinion  is  requested  within  a  limited  time  the  justices 
will  endeavor  to  comply  with  the  reqiiest,  but  an  opinion  may 
be  refused  if  the  time  available  will  not  permit  a  reasonable 
consideration  of  the  question. 

The  justices  have  frequently  complained  that  advisory 
opinions  were  often  requested  under  such  circumstances  that, 
if  they  were  to  be  of  any  use  to  the  interrogator,  there  was  too 
little  time  for  investigation,  the  hearing  of  arguments,  or  con- 
sultation among  themselves.^  Sometimes  they  have  stated 
that  the  opinion  returned  was  only  such  as  the  time  at  their 
disposal  permitted.2^^    The  reference  does  not  contain  a  definite 

2«  In  re  SB.  No.  416,  45  Colo.  394. 

2«  For  example  see  In  re  Relief  Bills,  21  Colo.  62;  and  In  re  Casual 
Deficiency,  21  Colo.  403. 

2" Questions  presented  for  advisory  opinions  "are  perhaps  almost 
necessarily  presented  under  circumstances  indicating  that  an  opinion  is 
expected  speedily.  And  they  are  received,  when  the  mind,  having  been 
greatly  exhausted  by  the  pressing  labors  of  other  ofl&cial  duties,  no  longer 
possesses  its  natural  vigor,  and  cannot  exercise  even  its  accustomed  extent 
of  thought  or  power  of  reason.  And  it  cannot  be  allowed  the  time  for  that 
extensive  research  and  patient  examination  and  reflection,  which  the  im- 
portance of  the  questions,  often  a  little  aside  from  the  range  of  its  accus- 
tomed studies  and  duties,  may  demand." — Opin.  of  the  Justices,  16  Me. 
479.  Cf.  the  complaint  of  ex- Justice  Morton  in  Deb.  Mass.  Conv.  1853, 
II,  p.  694,  and  of  the  Colorado  court  in  In  the  matter  of  the  Constitution- 
ality of  SB.  No.  65,  12  Colo.  466. 

2*'  In  re  Opin.  of  Justices,  209  Mass.  607;  Opin.  of  the  Justices,  etc.,  45 
N.  H.  593;  In  re  Opin.  of  the  Justices,  73  N.  H.  618;  In  re  Opin.  of  the  Jus- 
tices, 76  N.  H.  597;  0pm.  of  the  Justices,  2  Me.  439;  In  re  the  Constitutional 
Convention,  14  R.  I.  649;  In  re  State  Warrants,  6  S.  D.  518;  In  re  House 
Roll  284,  31  Nebr.  505;  Deb.  Mass.  Conv.  1853,  I,  p.  138  (N.  Y.  case);  and 
Opin.  of  the  Judges,  etc.,  37  Vt.  665. 


220  DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

time-limit^^  or  even  a  request  for  an  early  or  speedy  answer^* 
in  many  cases,  but  it  is  often  apparent  to  the  justices  from  the 
circumstances  of  the  case  (if  they  are  "judicially  known"  to 
them)  that  an  opinion  should  be  rendered  at  an  early  date  if 
at  all.^^  In  such  exigencies,  a  categorical  answer  has  some- 
times been  returned  promptly,  and  the  reasons  set  forth  at 
length  in  a  subsequent  communication.^^  In  a  very  few  in- 
stances an  opinion  has  been  refused  partly,  at  least,  because  of 
insufficient  time.^^^ 

It  is  evident  that  the  time  required  for  a  fairly  adequate 
consideration  will  vary  with  the  nature  of  the  questions  referred. 
In  some  instances  the  Colorado  justices  have  returned  opinions 
upon  legislative  questions  on  the  day  following  their  submission. 
At  other  times  they  have  taken  as  long  as  thirty  days.  The 
average  for  forty-nine  references  is  eight  and  three- tenths  days. 
In  Massachusetts,  the  average  for  forty-five  legislative  references 
is  fifteen  and  eight- tenths  days,  and  for  twenty-five  executive 
references,  eighteen  and  seven-tenths  days.  The  lower  average 
in  Colorado  may  be  due  to  the  limitation  of  legislative  sessions 
to  ninety  days,  or  to  a  less  scrupulous  consideration  of  questions 
referred.  Until  recently  the  opinions  in  Colorado  were  as  a 
rule  very  brief  and  contained  few  reasons,  while  the  Massa- 
chusetts justices  have  usually  outlined  the  argument  for  their 
opinions   as   for   regular   cases.     Because   legislative   inquiries 

2<*  Opin.  of  the  Justices,  126  Mass.  547;  and  Opin.  of  the  Justices,  etc., 
25   N.  H.   537. 

^^  Opin.  of  the  Justices,  etc.,  41  N.  H.  553;  In  re  Opin.  of  the  Justices, 
66  N.  H.  629;  In  re  Opin.  of  the  Justices,  76  N.  H.  597;  In  re  the  Constitu- 
tional Convention,  14  R.  I.  649;  and  In  re  Casual  Deficiency,  21  Colo.  403. 

2*0  Opin.  of  the  Justices,  etc.,  45  N.  H.  595;  In  re  SB.  No.  416,  45  Colo. 
394;  In  re  State  Warrants,  6  S.  D.  518;  In  re  Quaere,  etc.,  31  Nebr.  262; 
and  Deb.  Mass.  Conv.  1853,  I,  p.  138  (N.  Y.  case). 

^^  Opin.  of  the  Justices,  etc.,  45  N.  H,  595;  In  re  Opin.  of  the  Justices, 
66  N.  H.  629;  and  In  re  Quaere,  etc.,  31  Nebr.  262. 

2«2  Opin.  of  the  Court,  58  N.  H.  623;  In  the  matter  of  Senate  Resolution 
on  the  subject  of  Irrigation,  9  Colo.  620;  In  re  Bill,  etc.,  23  Colo.  504;  In  re 
HB.  No.  99,  etc.,  26  Colo.  140;  and  In  re  SB.  No.  416,  45  Colo.  394. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  221 

generally  relate  to  pending  bills,  it  is  to  be  expected  that  the 
justices  would  tend  to  hurry  their  answers  a  Uttle  more  than  for 
executive  inquiries,  and  this  seems  to  be  true  in  Massachusetts 
at  least. 

12.  In  rendering  advisory  opinions^  the  justices  should  act  indi- 
vidually and  not  as  a  court. 

There  can  be  no  question  that  this  is  true  in  every  State 
except  possibly  Colorado.  It  has  been  expressly  stated  by 
the  justices  themselves  in  Massachusetts,^  New  Hampshire,^ 
and  Missouri,^  that  "in  giving  such  opinions,  the  justices  do 
not  act  as  a  court,  but  as  the  constitutional  advisers  of  the  other 
departments  of  the  government."  This  assertion  was  not 
based  upon  the  words  of  the  constitution,  but  upon  the  evident 
nature  and  purpose  of  the  device.  In  the  Massachusetts 
opinion,  it  follows  a  very  painstaking  historical  review  of  the 
advisory  opinion  in  England.  Additional  support  for  the  rule 
may  be  found  in  the  scores  of  instances  where  individual  opinions 
have  been  given,  both  in  concurrence  and  dissent.^ 

Only  in  Colorado  has  there  been  an  attempt  to  set  up  the 
contrary  rule.  As  usual,  the  source  of  disagreement  is  In  the 
matter  of  the  ConstitutionaUty  of  SB.  No.  65,  12  Colorado,  466. 
In  that  case.  Helm,  C.  J.,  emphasized  the  fact  that  the  constitu- 
tion imposed  the  advisory  duty  upon  the  court  and  not  the 
justices,  and  made  this  an  argument  for  the  binding  force  of 
advisory  opinions  in  Colorado  (see  next  rule).  It  is  submitted 
that  the  learned  chief  justice  gave  too  great  weight  to  the  exact 
words  of  the  constitution  and  too  little  regard  to  the  history 
and  intent  of  advisory  opinions.^^  A  member  of  the  judiciary 
committee  that  proposed  the  amendment  of  1886  in  the  senate^^ 

263  Opin.  of  the  Justices,  126  Mass.  557. 

2M  Opin.  of  the  Court,  60  N.  H.  585. 

2*5  0pm.  of  Supreme  Court  Judges,  etc.,  55  Mo.  295. 

2«  See  pp.  149-151  supra. 

2*^  See  Thayer  in  The  Nation,  Vol.  49,  p.  476. 

268  O.  F.  A.  Greene  in  The  Nation,  Vol.  50,  p.  50. 


222     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

tells  US  that  the  provision  as  worded  was  "injected  into  the  bill 
by  a  hasty  amendment  in  committee  of  the  whole,"  that  the 
legislative  mind  had  no  such  intent  as  was  attributed  to  it 
by  the  chief  justice,  and  that  "in  legislative  parlance,  when 
any  power  is  to  be  conferred  upon  the  court  as  a  whole,  or  upon 
any  of  its  members  as  judges,  it  is  customary  to  use  the  term 
'the  Supreme  Court.'  "  As  a  matter  of  course,  the  assignment 
of  duties  to  the  justices  of  the  supreme  court  as  individuals  is 
very  rare,  and  it  is  quite  natural  that  the  legislative  habit 
of  referring  to  them  collectively  as  the  "supreme  court"  should 
have  influenced  the  wording  of  a  hastily  framed  clause.  Again, 
if  the  apphcation  of  the  device  were  to  be  guided  strictly  by 
the  words  of  the  constitution,  it  is  not  perceived  why  emphasis 
should  not  be  placed  upon  the  word  "opinion"  as  contradis- 
tinguished to  "decision,"  or  why  questions  of  fact  as  well  as 
questions  of  law  should  not  be  within  the  scope  of  the  clause. 
Although  advisory  opinions  in  Colorado  have,  as  a  rule, 
been  given  "Per  Curiam, "^^^  this  doctrine  of  1889  has  been 
reasserted  only  once,^^"  and  that  by  a  chief  justice  who  had  been 
one  of  the  justices  in  the  earlier  case.  In  fact,  individual 
replies  have  been  made  in  Colorado,^^^  though  it  still  seems  to 
be  accepted  that  an  opinion  upon  the  question  referred  should 
not  be  given  unless  the  majority  think  the  reference  is  within 
the  clause.^®^  Except  in  such  cases,  the  question  is  of  little 
importance,  unless  the  giving  of  opinions  by  the  court  be  used 
as  an  argument  for  their  force  as  judicial  precedents,  and  we 
hope  to  show  that  this  latter  theory  is  of  doubtful  validity, 
even  in  Colorado. 

269  See  pp.  147-148  supra. 

28°  In  re  Priority  of  Legislative  Appropriations,  19  Colo.  58. 

2"  In  re  SB.  Providing  for  a  Board  of  Public  Works,  etc.,  12  Colo.  188; 
In  re  HR.  No.  10,  50  Colo.  71;  and  In  re  Interrogatories  of  the  Senate,  54 
Colo.   166. 

2*2  In  re  Interrogatories  of  the  Senate,  54  Colo.  166. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  223 

13.  Advisory  opinions  have  no  binding  force  as  precedents,  except 
possibly  in  determining  later  extra-judicial  practice. 
Viewed  in  the  light  of  historical  origin  and  development,  the 
advisory  opinion,  as  we  now  call  it,  must  unquestionably  be 
understood  as  subject  to  the  limitation  expressed  in  this  rule. 
It  is  the  modern  form  of  the  advice  given  to  the  EngHsh  king 
and  House  of  Lords  by  the  king's  councillors.  The  words 
used  to  describe  the  practice  are  sufficiently  indicative  of  its 
juridical  character.  The  judges  are  called  on  to  counsel  and 
advise;^  opinions,  not  judgments,  are  required.^  These 
opinions  had  no  compelHng  force  with  the  king  or  lords, 
and  before  the  end  of  the  eighteenth  century,  the  judges  had 
made  it  clear  that  they  would  not  be  bound  by  them  in  later 
cases,  but  reserved  the  right  to  change  their  opinion  "in  case 
they  should  see  cause  for  it."^ 

The  early  practice  in  the  United  States  fully  accorded 
with  this  view,  and  in  some  States  there  has  been  no  tergiversa- 
tion at  all.  In  Massachusetts  the  rule  was  first  announced 
in  Adams  v.  Bucklin,^^  a  regular  case  in  which  the  court  re- 
ferred to  an  earlier  opinion,-^^  saying:  "We  do  not  however 
consider  that  opinion  binding  upon  us  in  this  action;  but  after 
carefully  revising  it,  we  are  satisfied  of  its  correctness,  and 
with  the  reasons  given  in  support  of  it."  In  1844,  they  gave 
a  real  ex  parte  opinion  reluctantly,  with  the  understanding 
that  such  an  opinion  could  not  be  considered  "as  having  the 
force  of  a  judgment,  binding  on  the  rights  of  parties"  but 
"must  be  taken  as  an  opinion  upon  the  precise  question  pro- 

*"  Northumberland's  Case,  Rot.  Pari.  5  Henry  IV,  Nos.  11  and  12; 
Duke  of  York's  Case,  Rot.  Pari.  39  Henry  VI,  No.  12;  and  3-4  Wm.  IV,  c. 
41,  s.  4. 

**  Commission  Case,  Fortescue  392 ;  Peacham's  Case,  Bacon's  Works, 
IV,  pp.  593,  596,  601;  Paty's  Case,  14  East,  92  n.;  Whiston's  Case,  Burnet's 
Own  Times,  p.  867. 

2«  See  pp.  14-16,  23,  supra. 

2M7  Pick.  125. 

»'  Opin.  of  the  Justices,  7  Pick.  130  n. 


224      DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

posed,  which  cannot  affect  the  rights  of  parties,  should  they 
hereafter  be  brought  before  the  court  in  a  regular  course  of 
judicial  proceeding.  "^^^  An  opinion  was  cited  by  the  attorney- 
general  as  an  authority,  in  Green  v.  Commonwealth,^^  but 
the  court  observed  that  "an  opinion  formed  and  expressed 
under  such  circumstances  cannot  be  considered  in  any  sense 
as  conclusive  or  binding  on  the  rights  of  parties,  but  is  regarded 
as  being  open  to  reconsideration  and  revision."  The  same 
rule  has  been  reiterated  again  and  again  by  the  Massachusetts 
justices,^^°  and  has  never  been  questioned  in  that  State.  This 
is  true  also  of  New  Hampshire,^^^  Rhode  Island,^^^  Fiorida,^^^ 
and  of  a  number  of  States  where  advisory  opinions  are  extra- 
constitutional.2^*  On  principle,  the  rule  should  apply  also  to 
opinions  required  under  a  statute,  and  this  view  has  been  taken 
in  Oklahoma^^^  and  in  Canada.^^®  It  will  be  remembered  that 
in  some  of  the  provinces  since  1890  and  in  the  Dominion  since 

2«8  Opin.  of  the  Justices,  5  Mete.  596. 

2«9 12  Allen,  155. 

270  Opin.  of  the  Justices,  122  Mass.  600;  Functions  of  Judiciary,  148 
Mass.  623;  In  re  Opin.  of  the  Justices,  190  Mass.  611;  In  re  Opin.  of  the 
Justices,  214  Mass.  599;  In  re  Opin.  of  the  Justices,  214  Mass.  602;  Young  v. 
Duncan,  218  Mass.  346;  and  Woods  v.  Wobum,  220  Mass.  416. 

2"  Opin.  of  the  Justices,  etc.,  25  N.  H.  537;  Opin.  of  Justices,  70  N.  H. 
638;  and  In  re  Opin.  of  the  Justices,  76  N.  H.  597. 

272  Taylor  v.  Place,  4  R.  I.  324. 

273  In  the  matter  of  the  Executive  Communication,  etc.,  12  Fla.  686; 
In  the  matter  of  the  Executive  Communication,  etc.,  14  Fla.  289;  and  In 
re  Opin.s  of  the  Justices,  69  Fla.  632. 

27*  Reply  of  the  Judges,  etc.,  33  Conn.  586;  In  re  Railroad  Commis- 
sioners, 15  Nebr.  679;  and  Report  of  the  Judges,  etc.,  3  Binney,  595. 

27S  State  V.  Johnson,  21  Okla.  40;  Opin.  of  the  Judges,  3  Okla.  Cr.  315; 
In  re  Opin.  of  the  Judges,  6  Okla.  Cr.  18;  and  In  re  Opin.  of  Judges,  6  Okla. 
Cr.  210. 

27«  In  re  Certain  Statutes,  etc.,  22  Can.  S.  C.  R.  577;  Attorney-General 
for  Ontario  v.  Attorney-General  for  Dominion,  et  al.,  (1896)  A.  C.  348; 
In  the  matter  of  Jurisdiction  over  Provincial  Fisheries,  26  Can.  S.  C.  R.  444; 
and  In  the  matter  of  the  Representation  of  Prince  Edward  Island,  etc.,  33 
Can.  S.  C.  R.  594. 


mTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  225 

1891,  the  advisory  character  of  the  opinions  is  clearly  indicated 
in  the  statutes;  so  the  later  protestations  of  the  judges  were 
unnecessary .2^^  The  case  is  a  little  more  difficult  when  the 
statute  attempts  to  give  the  opinions  more  than  advisory  force. 
It  seems  to  be  true  in  Canada  that  even  if  the  statute  says  an 
opinion  "  shall  be  deemed  a  judgment  of  the  Court, "  the  judges 
may  limit  that  effect  to  special  purposes  and  hold  that  the 
opinion  is  for  information  alone.^^^  Certainly  the  supreme 
court  of  Canada  will  not  entertain  an  appeal  from  such  a  "judg- 
ment. "^^^  On  the  other  hand,  when  the  purpose  of  the  statute 
is  to  secure  a  judicial  declaration  as  to  the  constitutional  pas- 
sage of  an  act  under  suspicion,  perhaps  the  judges  will  act 
upon  a  direction  to  nullify  such  law.^^^ 

It  remains  to  consider  the  anomalous  doctrine  of  a  few 
cases  in  Maine  and  Colorado.  The  early  Maine  practice  seems 
to  have  been  sound.  In  State  v.  Cleveland,  58  Maine,  564, 
Kent,  J.,  says:  "It  is  true,  unquestionably,  that  the  opinions 
given  under  a  requisition  like  this  have  no  judicial  force,  and 
cannot  bind  or  control  the  action  of  any  officer  of  any  depart- 
ment. They  have  never  been  regarded  as  binding  upon  the 
body  asking  for  them."  He  finally  persuades  himself  to  give 
an  opinion  only  because  it  "cannot  have  any  authoritative 
force  in  any  possible  future  proceedings  in  the  case. "  Tapley, 
J.,  takes  the  same  position  in  Opinion  of  the  Justices,  58  Maine, 
590.  The  opposite  theory  is  a  product  of  the  awkward  pohtical 
predicament  of  1879.  Governor  Garcelon  asked  advice  as  to 
a  series  of  election  details,^^^  but  apparently  finished  canvassing 
the  votes  before  the  answer  reached  him.^®    The  names  of 

2"  In  re  Criminal  Code,  43  Can.  S.  C.  R.  434;  In  re  References,  etc., 
43  Can.  S.  C.  R.  536;  and  cf.  Attorney-General  for  Ontario  v,  Attorney- 
General  for  Canada,  (1912)  A.  C.  571. 

2^8  In  re  Ontario  Medical  Act,  13  Ont.  L.  R.  501. 

2^9  Union  Colliery  Co.,  etc.,  v.  Attorney-General  of  British  Columbia, 
et  al.,  27  Can.  S.  C.  R.  637. 

"0  In  re  an  Act,  etc.,  83  N.  J.  L.  303. 

281  Questions  Submitted,  etc.,  70  Me.  560. 

282  See  Statement  and  Questions  Submitted,  etc.,  70  Me.  600. 


226  DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

many  candidates  for  the  legislature  were  rejected  because  of 
alleged  defects  in  the  returns  (not  recognized  as  defects  in 
the  opinion  of  the  justices).  Rival  legislatures  were  organized, 
one  of  which  (composed  partly  of  the  rejected  candidates) 
asked  the  justices  whether  the  governor  and  council  had  a 
right  to  summon,  as  elected,  persons  "who  by  the  official  re- 
turns under  the  decision  of  the  court  (do)  not  appear  to  be 
elected.  "2^  This  phraseology  was  of  course  dictated  by  a 
misapprehension  of  the  character  of  the  opinion  previously 
rendered,  for  the  court  had  given  no  decision  and  could  not  have 
done  so  in  the  premises.  But  the  justices  were  seduced  by 
the  fallacy.  "The  opinion  of  the  court  was  thus  obtained," 
they  said,  "in  one  of  the  modes  provided  in  the  constitution 
for  an  authoritative  determination  of  'important  questions 
of  law.'  The  law  thus  determined  is  the  conclusive  guide  of 
the  governor  and  council  in  the  performance  of  their  ministerial 
duties.  Any  action  on  their  part  in  determining  the  vote  as 
it  appears  by  the  returns  in  violation  of  the  provisions  of  the 
constitution  and  law  thus  declared  is  an  usurpation  of  authority, 
and  must  be  held  void. "  The  radical  doctrine  thus  enunciated 
was  supported  by  no  argument  and  no  citation  of  authorities. 
It  was  the  fiat  of  the  justices.  It  proceeds  upon  false  hypotheses 
and  leads  to  incorrect  results.  The  opinion  given  to  the  gover- 
nor was  not  the  opinion  of  the  "court"  but  of  the  justices. 
The  word  "authoritative"  as  used  is  a  specious  petitio  principii. 
Clearly  the  assumption  of  their  power  to  control  the  governor 
and  council  in  the  exercise  of  duties  entrusted  exclusively  to 
them  by  the  constitution  was  the  real  usurpation.  In  other 
respects  the  opinion  bears  evidence  of  being  carelessly  drafted. 
It  could  not  have  been  very  carefully  considered  for  a  list  of 
twenty-five  somewhat  complicated  questions  was  answered  in 
four  days.  Also  quite  Hkely  the  attitude  of  the  justices  was 
influenced  by  the  popular  excitement  that  prevailed.^^* 

283  Statement  and  Questions  Submitted,  etc.,  70  Me.  570. 
2"  It  would  be  interesting  to  know  whether  the  political  complexion 
of  the  court  was  the  same  as  that  of  the  rejected  candidates. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  227 

Thayer,  writing  in  1885,^^  says:  "It  may  be  confidently 
expected  that  the  subject,  in  Maine,  will  not  rest  where  it  is 
thus  left."  This  prophecy  has,  we  think,  been  completely 
reaUzed.  Even  in  1881,  two  of  the  justices  who  had  participated 
in  the  objectionable  opinion  admit  that  an  opinion  given  to 
the  council  as  to  the  governor's  right  to  remove  the  supreme 
court  reporter  would  bind  neither  the  State  nor  the  reporter, 
and  would  have  no  effect  upon  the  court,  "  if  the  matter  should 
be  judicially  brought  before"  it  in  a  later  case.^^  By  1901, 
all  the  justices  are  agreed  that  an  advisory  opinion  "has  not 
the  binding  force  of  a  judgment  of  court"  and  is  not  "within 
the  principle  of  stare  decisis. "^^''  Finally  the  matter  was 
brought  definitely  before  the  court  in  two  regular  cases.  A 
Maine  opinion  was  cited  in  Sawyer  v.  Gilmore  (1912),^^^  and 
the  court  not  only  pointed  out  that  "the  opinions  of  Justices 
given  at  the  request  of  either  Branch  of  the  Legislature  or  of 
the  Executive  do  not  have  the  binding  force  of  decisions  in 
adjudicated  cases, "  but  actually  modified  the  rule  of  the  opinion 
cited.  "We  do  not  feel,"  they  say,  "that  the  conclusions 
reached  in  this  decision  after  mature  deUberation  should  be 
modified  because  of  these  expressions  in  the  opinions  of  the 
Justices  which  are  in  the  nature  of  dicta  in  an  unadjudicated 
case"  (at  page  185).  And  again,  in  Laughlin  v.  City  of  Port- 
land (1914),^^^  the  plaintiffs  confidently  reUed  upon  two  ad- 
visory opinions  from  Massachusetts,  and  the  court  repUed  that 
they  did  not  "have  the  force  of  a  decision."  We  may  fairly 
conclude  that  the  sporadic  doctrine  announced  by  the  Maine 
justices  in  1880  has  been  discredited  in  that  State  and  that 
the  present  day  practice  is  in  harmony  with  the  rule  as  stated 
above. 

2*®  Leg,  Essays,  p.  56. 

28«  Libbey  and  Walton,  JJ.,  in  Question  Submitted,  etc.,  72  Me.  542. 
287  Opin.s  of  the  Justices,  95  Me.  564;  cf.  opinion  of  Savage,  J.,  in  In  re 
Opin.  of  the  Justices,  103  Me.  506. 
"8 109  Me.  169. 
"»111  Me.  486. 


228     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

The  erroneous  belief  in  the  conclusiveness  of  extra-judicial 
opinions  has  been  more  persistent  in  Colorado,  though  it  has 
rested  entirely  upon  obiter  dicta.  It  saw  the  light  first  in  the 
compendious  exposition  of  1889  to  which  we  have  so  often  re- 
ferred.^^^  Starting  with  the  questionable  proposition  (see 
rule  12  supra)  that  opinions  are  to  be  given  by  the  court  and 
not  the  justices,  and  observing  also  that  responses  are  to  be 
reported  "as  are  other  opinions,"  Helm,  C.  J.,  abruptly  comes 
to  the  conclusion  that  ''they  have  all  the  force  and  effect  of 
judicial  precedents."  We  have  already  presented  our  ob- 
jections to  the  premise  stated.  His  second  observation  is 
misleading.  The  giving  of  advisory  opinions  in  writing  is 
characteristic  of  the  American  practice  throughout,  and  is 
desirable  as  a  matter  of  convenience.^^^  Then  the  constitution 
does  not  say  advisory  opinions  are  to  be  reported  "as  are 
other  opinions;"  it  says  they  "shall  be  published  in  connection 
with  the  reported  decisions  of  said  court."  A  distinction 
seems  to  be  made  between  "opinions"  and  "decisions."  If 
the  intention  was  to  place  both  on  the  same  plane,  as  the  chief 
justice  infers,  why  did  not  the  legislature  say  "in  connection 
with  the  other  decisions  of  said  court?"  Again  we  have  the 
evidence  of  Mr.  O.F.A.  Greene,  whose  relation  to  the  amendment 
entitles  him  to  a  careful  hearing,  that  the  legislature  had  no 
such  intention,^^^  and  that  the  reporting  of  opinions  was  "  sole- 
ly for  convenience  of  reference.  "^^^ 

290  In  the  matter  of  the  Constitutionality  of  SB.  No.  65,  12  Colo.  466. 

291  See  pp.  42-44,  146-147  supra. 

292  "The  position  of  Judge  Helm  in  drawing  inferences  in  his  opinion 
upon  historic  grounds  and  slight  verbal  changes  against  stare  decisis  is 
untenable.  The  judge  by  his  construction  gives  to  the  provision  ...  a 
meaning  that  the  Legislature  framing  it  did  not  contemplate — that  is  to 
say,  the  legislative  mind  had  neither  a  negative  nor  an  afl&rmative  purpose 
in  regard  to  the  value  of  such  opinions  as  general  judicial  precedents.  .  .  . 
The  very  hostility  of  the  Legislature  to  the  court  at  that  time  precluded 
any  intention  of  enlarging  such  power  beyond  the  necessity  of  the  expedient. " 
Letter  in  The  Nation,  Vol.  50,  p.  50. 

293  Ibid. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  229 

But  the  court  could  not  face  the  logical  consequences  of  its 
own  pronouncement.  It  fell  to  the  lot  of  a  member  of  the 
1889  court,  when  he  became  chief  justice,  to  reject  the  rule 
of  his  predecessor  in  unmistakable  terms.  In  1893,  he  toned 
it  down  sUghtly^^  and  the  following  year  was  compelled  to 
abandon  it  altogether.  An  opinion  had  been  given  to  the 
governor  assuring  him  that,  on  the  facts  stated  in  his  inter- 
rogatory, he  had  rightly  removed  the  fire  and  excise  commis- 
sioners of  Denver,  but  advising  him  that  he  should  not  use 
force  to  effect  their  removal,  but  resort  to  judicial  proceed- 
ings.^^^  Then  when  qico  warranto  was  brought,  the  court 
stated  plainly  that  the  opinion  given  to  the  governor  was  not 
binding  upon  them  and  might  require  modification  upon  ar- 
gument in  a  litigated  case.^^  The  same  court  reasserted 
these  principles  in  People  v.  McClees,^^'^  and  a  sHghtly  differ- 
ent court  in  People  ex  rel.  v.  Le  Fevre  gave  particular  attention 

294  "  By  our  constitution  questions  are  to  be  propounded  to,  and  answers 
returned  by,  the  court,  instead  of  the  justices,  as  elsewhere,  and  published 
in  connection  with  other  decisions,  thus  giving  such  answers  to  some  extent 
the  force  and  effect  of  judicial  precedents. " — ^per  Hayt,  C.  J.,  in  In  re  Priority 
of  Legislative  Appropriations,  19  Colo.  58, 

2*s  In  re  Fire  and  Excise  Commissioners,  19  Colo.  482. 

*8«  "But  it  could  not  be  assumed  that  such  ex  parte  statement  could  not 
be  controverted,  nor  that  an  opinion  based  thereon  might  not  require  modi- 
fication when  the  other  side  should  present  their  cause  in  court  as  they  had  a 
right  to  do.  It  would  have  been  highly  improper  to  give  an  unqualified 
opinion  upon  such  ex  parte  statement.  No  opinion  based  upon  such  state- 
ment could  have  been  made  to  bind  the  parties  contending  for  official  place 
upon  the  fire  and  police  board.  WTiile  the  constitution  requires  this  court 
to  'give  its  opinion  upon  important  questions  upon  solemn  occasions  when 
required  by  the  governor,'  it  does  not  require,  nor  does  the  constitution 
permit,  this  court  to  render  judgment  in  connection  with  such  opinion. 
The  court  may  give  its  opinion  upon  the  law  based  upon  the  facts  sub- 
mitted by  the  executive,  but  it  cannot  render  judgment  thereon,  nor  can 
it,  upon  such  questions,  undertake  to  determine  questions  of  fact." — People 
v.  Martin  and  People  v.  Orr,  19  Colo.  565. 

2"  "In  no  doubtful  case  where  large  interests  are  involved  will  an  ex 
parte  opinion  be  accepted  as  decisive.     This  is  well  illustrated  in  respect 


230  DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

to  the  arguments  in  a  case  that  would  have  been  governed  by 
an  earher  advisory  opinion  if  binding,  in  order  that  a  precedent 
might  be  "estabhshed  in  a  case  where  unquestionably  both 
sides  appear.  "2^^  In  this  latter  instance,  great  weight  was 
given  to  the  earlier  opinion  because  it  had  been  "the  unques- 
tioned law  of  this  State  for  more  than  seven  years,"  but  even 
so  the  relators  were  not  "estopped  to  question  the  soundness 
of  this  decision  (?),  if  it  is  wrong."  This  careless  use  of 
the  word  "  decision  "  may  be  found  in  even  later  cases.^^^  There 
is  a  worse  backsliding  in  1900.  On  a  prosecution  under  the 
eight  hour  law  of  1899,  the  court  called  attention  to  its  un- 
favorable opinions  upon  the  law  when  pending  and  said:  "But 
wholly  disregarding  these  decisions,  binding  alike  on  all  de- 
partments of  government,  it  proceeded  to  enact  the  measure 
now  before  us."^^^  Still  the  case  is  not  an  authority  for  the 
binding  effect  of  opinions  on  anybody,  for  the  court  proceeds 
to  test  the  act  all  over  again  before  making  a  decision.^^^    Fi- 

to  the  very  matters  now  sought  to  be  brought  before  this  court  for  recon- 
sideration. See  In  re  Election  of  District  Judges,  11  Colo.  373,  where  these 
same  matters  were  considered  and  an  opinion  given  in  response  to  a  question 
from  the  governor.  That  opinion,  however,  was  given  before  the  calling 
of  the  election,  so  that  no  individual  claims  to  ofl&ce  had  arisen.  It  is  mani- 
fest that  such  opinion  is  not  now  accepted  as  conclusive,  because  not  de- 
livered in  an  actually  Utigated  case.  We  refer  to  this  as  fortifying  the  view 
that  the  present  controversy  must  be  heard  and  determined,  if  at  all,  in 
some  proceeding  where  the  jurisdiction  of  the  court  is  undoubted.  When 
it  is  heard  and  determined  in  a  proceeding  where  the  court  has  jurisdiction, 
not  only  to  express  its  opinion,  but  to  render  and  enforce  its  judgment,  the 
decision  will  have  more  weight." — ^People  v.  McClees,  20  Colo.  403. 

298  21  Colo.  218. 

2»»E.  g..  Parks  v.  Soldiers'  and  Sailors'  Home,  22  Colo.  86;  and  In  re 
Application  of  Morgan,  etc.,  26  Colo.  415. 

30"  In  re  Application  of  Morgan,  etc.,  26  Colo.  415. 

301  "Following  the  rule  of  stare  decisis,  we  might  content  ourselves  with 
a  mere  affirmance  of  our  previous  announcements,  made,  as  they  were, 
upon  full  consideration;  but  in  view  of  the  importance  of  the  questions 
involved  we  have  thought  it  best  fully  to  discuss  the  principles  by  which 
this  act  must  be  tested." — ibid. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  231 

nally  in  a  1913  case  ^^  it  was  correctly  stated  by  Scott,  J., 
(albeit  obiter)  that  the  answer  requested  was  only  advisory 
and  "may  be  reviewed  or  changed  upon  a  more  formal  and 
complete  investigation. " 

Collating  the  above  opinions,  it  must  be  admitted  that 
it  is  difficult  to  determine  the  prevaiUng  rule  in  Colorado.  The 
statements  quoted  are,  it  is  conceived,  irreconcilable.  How- 
ever, it  is  submitted  that  the  weight  of  authority  excludes  the 
application  of  stare  decisis  to  advisory  opinions.  It  will  be 
seen  presently  that  there  are  quite  a  few  cases  where  doctrines 
announced  in  advisory  opinions  have  been  followed;  but  this 
is  quite  consistent  with  the  respect  paid  to  advisory  opinions 
in  other  States,^^  where  it  has  never  been  suggested  that  ad- 
visory opinions  had  binding  force.  More  important  for  our 
purpose  are  those  few  cases  in  which  the  judges  have  unequi- 
vocally stated  that  they  were  not  bound  by  opinions  previous- 
ly given,  but  would  reopen  the  question  and  review  their  con- 
clusions in  a  regular  case  at  any  time.  There  is  no  clear  case 
to  the  contrary.  But  do  the  answers  bind  the  interrogators? 
Here  we  are  at  an  impasse.  The  legislature  has  disregarded 
the  opinions  of  the  justices;  the  justices  have  asserted  their 
opinions  are  binding  upon  the  legislature.  This  phase  of  the 
question  is  not  of  great  practical  importance,  for  the  legis- 
lature and  governor  evidently  can  do  what  they  will — ^judicial 
protest  is  a  hrutum  fulmen. 

In  passing  a  reference  might  be  made  to  the  practice  in 
the  two  States  not  mentioned  above.  The  only  indication 
we  have  of  the  attitude  of  the  Missouri  justices  is  in  a  case  of 
1868,3'^  where  they  accompany  a  refusal  to  give  an  ex  parte 
opinion,  with  the  observation  that  "the  expression  of  opinions 
on  such  matters  might  be  looked  upon  as  prejudging  the  case, 
and  would  greatly  embarrass  the  court  in  its  subsequent  ad- 

3°2  In  re  Interrogatories  of  the  Senate,  54  Colo.  166. 

'°'See  pp.  201-202  infra. 

3M  In  the  matter  of  the  N.  Mo.  R.  R.,  51  Mo.  586. 


232     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

judications."  As  they  answered  similar  questions  in  other 
cases,  without  worrying  about  the  judicial  effect  of  such  answers, 
their  dictum  need  not  be  taken  very  seriously.  In  South 
Dakota,  the  principle  stated  by  Helm,  C.  J.,  in  the  Colorado 
opinion  of  1889  found  letter-perfect  adherence  in  the  justices  of 
^397-305  ]3u|-  a^  later  court  met  the  attorney-general's  suggestion 
that  their  opinion  would  settle  a  certain  question  with  an 
unmistakable  disclaimer.  "The  answer  would  not  amount 
to  a  decision  of  the  Supreme  Court  of  this  State,  but  would 
merely  be  an  advisory  opinion  of  the  judges  not  conclusive 
upon  the  rights  of  parties,  and  binding  on  no  one.  .  .  It  is 
clear  to  us  that  the  duty  of  the  federal  courts  to  follow  the 
decision  of  a  state  court  in  matters  pertaining  to  the  construc- 
tion of  a  state  Constitution  does  not  comprehend  advisory 
opinions  of  judges  which  do  not  have  the  force  of  judicial 
decisions.  .  .  .  The  distinction  between  the  binding  effect 
of  a  decision  of  the  Supreme  Court  of  South  Dakota  and  an 
advisory   opinion   of   the   judges   is   obvious.  "^'^^ 

We  think  it  has  been  shown  that  the  precedents  justify 
the  rule  as  formulated  above.  Advisory  opinions  have  not 
the  force  of  judicial  precedents,  and  the  doctrine  of  stare  decisis 
has  no  appHcation  to  them  if  the  same  question  is  presented 
to  the  court  in  a  case  inter  partes.  When  the  prevailing  prac- 
tice is  essentially  agreed  upon  the  rule,  the  burden  of  proof 
is  upon  those  who  allege  an  exception.  The  matter  has  been 
in  doubt  in  only  three  States.  In  Maine  and  South  Dakota 
the  dissention  was  a  "hapax  legomenon"  which  now  stands 
corrected.  In  Colorado,  the  case  is  not  so  clear  for  the  rule, 
but  most  of  the  opposition  consists  of  dicta  found  in  opinions, 
while  the  weight  of  regular  decisions  is  in  its  favor.  Every 
writer  in  the  field  of  law  who  has  dealt  with  the  question  has 
concluded  that  this  is  sound  jurisprudence.  In  1885  Thayer 
gave  it  considerable  attention  in  a  "Memorandum  on  the 

305  In  re  HR.  No.  30,  10  S.  D.  249. 

3o«  In  re  Opin.  of  the  Judges,  34  S.  D.  650. 


mXERPRETATION  OF  ADVISORY  OPINION  CLAUSES  233 

Legal  Effect  of  Opinions  given  by  Judges/'  etc.,  and  said 
"it  seems  clear  that  the  opinions  herein  referred  to  are  purely- 
advisory.  "^°'  The  accepted  practice  of  the  last  thirty  years 
has  been  corroborative  of  that  statement. 

This  is  as  it  should  be  on  principle.  The  opinions  are  for 
the  guidance  of  the  other  departments  in  difficult  paths.  They 
are  advice  or  counsel,  to  aid  in  the  solution  of  legislative  and 
executive  problems.  Necessarily  these  problems  sometimes 
involve  questions  of  private  right,  but  that  does  not  mean  that 
the  advisory  opinion  scheme  must  be  interpreted  as  a  new  and 
extraordinary  way  by  which  private  rights  may  be  adjudicated. 
The  reasons  usually  given  for  the  doctrine  of  stare  decisis  apply 
in  very  small  degree  to  the  advisory  opinion,  if  its  character 
once  be  clearly  understood.  The  matter  dealt  with  in  an 
advisory  opinion  certainly  is  not  res  jtidicata.  Facts  are  not 
investigated;  all  the  parties  concerned  are  probably  not  repre- 
sented before  the  court — they  do  not  come  before  the  court 
asking  for  anything,  and  the  opinion  of  the  court  is  not  given 
to  them  but  to  a  coordinate  branch  of  the  government.  Would 
the  justices  who  have  called  these  opinions  "decisions"  or 
"adjudications"  grant  execution  if  the  party  favored  by  an 
opinion  should  ask  for  it?  Surely  not;  yet  this  is  the  logical  con- 
sequence of  a  decision.  But,  it  is  said,  it  is  admitted  that  an 
advisory  opinion  is  not  a  real  decision,  but  it  is  "  in  the  nature 
of  a  decision,"  it  has  the  force  and  effect  of  a  "judicial  prece- 
dent. "  If ,  by  this  first  phrase,  it  is  meant  that  advisory  opin- 
ions are  deUvered  by  judicial  officers  in  a  form  similar  to  the 
decision  rendered  in  a  case,  plainly  it  is  not  a  reason  why  they 
should  be  binding.  Possibly  the  first  phrase  is  merely  synony- 
mous with  the  second.  Now  what  is  the  argument  for  the  com- 
p)eUing  force  of  precedents?    There  is  no  need  of  giving  space 

""  Thayer,  Legal  Essays,  pp.  42-60;  cf.  also  his  essay  on  Constitutional 
Law,  ibid.,  p.  34  (1893),  and  on  "International  Usages,"  ibid.,  p.  185  (1895); 
see,  too,  Dubuque  in  Am.  L.  Rev.  XXIV,  p.  369,  at  p.  374;  also  Harv.  L. 
Rev.  X,  pp.  50-51,  and  Albany  Law  Journal  LIX,  p.  21. 


234     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

to  a  detailed  review  of  it  here.  It  is  well  known  that  it  pre- 
supposes a  decision  by  a  court  of  competent  jurisdiction  in  a 
case  regularly  presented  and  argued  in  the  course  of  judicial 
proceedings.  Because  the  parties  to  a  particular  action  have 
been  compelled  to  adjust  their  business  relations  according 
to  certain  rules  by  a  court  which  has  advisedly  considered  the 
law  applicable  to  those  relations,  other  persons  are  justified 
in  assuming  that  in  all  probabihty  the  same  rules  would  be 
imposed  upon  them  in  similar  circumstances.  Would  they 
be  justified  in  assmning,  too,  that  rules  announced  to  the  legis- 
lative or  executive  departments  of  government  by  way  of 
assistance  would  be  imposed  upon  individual  litigants  in  a 
judgment?  This  has  been  answered  in  the  aflSjmative  on  the 
ground  that  private  individuals  may  reasonably  assume  that 
the  judicial  mind  will,  under  the  same  conditions,  arrive  at  the 
same  results.  Here  is  the  crux  of  the  matter.  The  conclusion 
would  be  defensible,  if  the  hypothesis  were  satisfied.  But  the 
conditions  are  not  the  same.  In  formulating  advisory  opinions, 
the  judges  are  commonly  unassisted  by  the  argument  of  counsel, 
they  are  required  to  deal  with  an  abstract  question  of  law  upon 
a  given  statement  of  facts,  and  they  are  often  very  limited  as 
to  time.  Opinions  given  under  such  circumstances  are  not 
always  carefully  considered  and  should  be  accepted  with  cau- 
tion. This  would  be  true  of  judgments  as  well.  Some  judges 
have  made  it  a  rule  not  to  be  bound  by  their  own  decisions 
upon  points  not  argued  before  them,  and  have  changed  their 
opinion   upon   argument.^^^ 

It  comes  to  this,  then,  that  advisory  opinions  are  entitled 
to  the  reverence  which  their  intrinsic  qualities  merit.  This 
has  been  accorded  them  in  every  State  where  they  exist,  and 

308  Story,  J.,  in  Deb.  Mass.  Conv.  1820,  p.  490.  Cf.  "It  might  almost 
be  suggested  as  a  wise  rule  to  apply  to  the  use  of  judicial  decisions  as  pre- 
cedents, that  no  case  should  be  held  to  acquire  binding  force  as  law  unless 
the  point  on  which  it  was  decided  had  been  argued  by  counsel." — Bouvier, 
s.  V.  Precedents. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  235 

in  others  as  well.  Their  influence  upon  the  public  law  of  some 
States  has  been  considerable.^"®  Where  the  question  referred 
has  evidently  been  scrupulously  and  deliberately  pondered, 
and  especially  if  legal  assistance  has  also  been  enjoyed,  or  where 
the  reasoning  is  unimpeachable,  an  opinion  may  have  practical- 
ly as  much  weight  as  if  it  had  been  deUvered  as  a  regular  de- 
cision.^^o  This  is  particularly  true  if  it  has  stood  unquestioned 
for  a  good  many  years.  So  we  find  that  the  rules  of  different 
opinions  are  cited  with  approval  in  a  good  many  litigated  cases .^^^ 
In  many  instances  these  rules  have  actually  been  "followed" 
in  regular  cases,  though  usually  only  after  the  court  had  revised 
them  and  were  satisfied  of  their  correctness.^^  Sometimes 
an  opinion  may  even  be  cited  as  the  authority  for  a  rule  of 
law,  i.e.,  as  a  leading  case,  when  it  has  been  "followed"  for  a 
number  of  years,^^  or  when  it  states  the  rule  concisely  and 

^^^  An  evidence  of  this  influence  is  seen  in  the  fact  that  Thayer  includes 
eight  adv-isory  opinions  in  his  Cases  on  Constitutional  Law,  and  Cooley 
cites  thirty  in  his  Constitutional  Limitations  (6th  ed.). 

310  See  In  re  Opin.  of  the  Justices,  214  Mass.  602. 

3"  Nichols  V.  Election  Commissioners,  196  Mass.  410;  Dinan  v.  Swig, 
223  Mass.  516;  Bingham  v.  Jewett,  66  N.  H.  382;  Wyatt  v.  State  Board  of 
Equalization,  74  N.  H.  552;  Thompson  v.  Pittston,  59  Me.  545;  Allen  v. 
Jay,  60  Me.  124;  Donnell  v.  Joy,  85  Me.  119;  Bangor  v.  Frankfort,  85  Me. 
128;  The  People  v.  Richmond  et  al.,  16  Colo.  274;  Henderson  v.  People  ex 
rel.  Wmgate,  17  Colo.  587;  Mayor,  etc.,  v.  Shattuck,  19  Colo.  104;  and  People 
ex  rel.  v.  Sours,  31  Colo.  369. 

312  Adams  v.  Bucklin,  7  Pick.  125;  Far^sell  v.  Boston,  192  Mass.  15; 
Young  V.  Duncan,  218  IMass.  346;  Woods  v.  Wobum,  220  Mass.  416;  Sawyer 
V.  Gilmore,  109  Me.  169;  Laughlin  v.  City  of  Portland,  111  Me.  486;  People 
V.  Martin  and  People  v.  Orr,  19  Colo.  565;  City  of  Denver  v.  Coulehan,  20 
Colo.  471;  People  ex  rel.  v.  District  Court  of  Arapahoe  Co.,  23  Colo.150; 
In  re  .-KppUcation  of  Morgan,  etc.,  26  Colo.  415;  and  Denver  v.  Londoner, 
33  Colo.  104. 

313  Attorney-General  v.  Haverhill  Gas  Light  Company,  215  Mass.  394; 
Dow  V.  Railroad,  67  N.  H.  1;  Amoskeag  Mfg.  Co.  v.  Manchester,  70  N.  H. 
336;  Murchie  v.  Clifford,  76  N.  H.  99;  French  v.  Lyme,  77  N.  H.  63;  People 
V.  State  Board  of  Equalization,  20  Colo.  220;  People  ex  rel.  v.  Le  Fevre,  21 
Colo.  218;  Parks  v.  Soldiers'  and  Sailors'  Home,  22  Colo.  86;  Stuart  v. 
Nance,  28  Colo.  194;  and  City  of  Denver  v.  Iliff,  38  Colo.  357. 


236     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

conveniently.^^'*  There  can  be  no  objection  to  judges  thus 
taking  advantage  of  the  wisdom  and  good  reasoning  of  their 
predecessors  as  exhibited  in  advisory  opinions  just  as  they  do 
when  they  are  embodied  in  the  dicta  of  regular  cases.  But 
the  adoption  of  advisory  rules  should  be  critical  and  not  slavish, 
voluntary  and  not  compulsory.  This  warning  applies  especially 
to  the  lower  courts  of  a  State.  The  supreme  court  justices 
have  sometimes  expressed  an  apprehension  lest  their  advisory 
opinions  be  in  a  sense  a  prejudgment  of  rights,  because  lower 
courts  would  usually  be  controlled  in  their  decisions  by  the 
principles  expounded  in  the  opinions.^^^  Often  this  would 
doubtless  be  true,^^^  just  as  subordinate  judges  give  much 
weight  to  the  dicta  of  superior  courts  as  foreshadowing  the 
conclusions  they  would  reach  if  the  questions  discussed  obiter 
had  to  be  decided.  There  can  be  no  great  harm  in  this.  Judges 
of  the  cahber  to  perceive  the  fallacies  of  dicta  and  opinions  will 
usually  realize  well  enough  that  they  are  not  bound  thereby. 
Coming  to  the  exception  appended  to  rule  13,  we  find  a 
much  simpler  problem.  The  legal  fondness  for  regularity  and 
definiteness  in  procedure  and  interpretation  has  played  a  most 
important  part  in  developing  the  advisory  opinion.  Many 
examples  have  been  given,  in  this  and  previous  chapters,  of 
long  series  of  opinions  in  a  given  State  in  which  the  same  rule 
of  interpretation  or  the  same  modus  operandi  was  consistently 
followed.  In  many  respects  the  practice  of  all  the  States  is 
now  approaching  uniformity.  If  it  were  not  for  this  consistency 
and  uniformity,  even  an  imperfect  exposition  of  the  advisory 
opinion  could  not  have  been  written.  It  might  almost  be 
said  that  there  is  a  real  stare  opinionibus  theory  in  the  United 

3"  Watson  V.  Needham,  161  Mass.  404;  and  Citizens  Gas  Light  Co.  v. 
Wakefield,    161   Mass.   432. 

318  Functions  of  Judiciary,  148  Mass.  623;  and  In  re  Opin.  of  the  Jus- 
tices, 190  Mass.  611. 

3i«  C.  F.  &  I.  Co.  V.  State  Board  of  Land  Commissioners,  14  Colo.  App. 
84,  for  example. 


INTERPRETATION  OF  ADVISORY  OPINION  CLAUSES  237 

States,  at  least  as  far  as  concerns  the  interpretation  of  the 
clause  and  the  technic  of  the  practice.  In  one  hundred  and 
fifteen  of  the  four  hundred  and  ten  constitutional  opinions 
rendered  in  the  United  States,  there  are  citations  to  previous 
opinions  in  the  same  State,  and  references  to  opinions  given 
in  other  States  are  almost  as  conmion.  "It  is  the  settled 
practice  of  this  court,"  "It  has  been  repeatedly  pointed  out 
that  our  opinions,"  "Testing  the  questions  propounded  by 
the  rules  established,"  and  many  other  phrases  of  a  similar 
nature,  supported  by  numerous  cases,  are  frequently  encoun- 
tered in  advisory  opinions.  Specific  examples  are  scarcely 
necessary.  The  judges  have  shown  as  great  a  reluctance  to 
vary  the  advisory  practice  as  they  do  in  htigated  cases.  An 
exception  to  an  estabhshed  rule  is  admitted  only  in  extraordinary 
exigencies  and  a  return  to  the  "better  practice"  is  made  at  the 
first  opportunity.  As  a  result,  we  have  the  existing,  fairly 
well-organized,  body  of  advisory  opinion  law. 


CHAPTER  IV 
OTHER  FORMS  OF  JUDICIAL  INFLUENCE 

Before  examining  the  effect  of  the  advisory  opinion  scheme 
upon  the  position  of  the  judiciary  in  a  modern  state,  we  may 
profitably  notice  some  other  devices  which  call  upon  the  judges 
for  extra-judicial  activity.  If  a  separation  of  powers  were 
completely  carried  out,  such  activity  would  be  prohibited. 
Yet  the  devices  we  are  about  to  mention  are  all  found  in  States 
of  the  Union  or  in  Central  or  South  American  states  which 
modeled  their  constitutions  upon  ours.  The  purpose,  in  every 
instance,  would  appear  to  be  the  same  as  that  of  the  advisory 
opinion  scheme — to  secure  expert  legal  assistance  of  a  semi- 
ofl&cial  sort  to  legislators  and  executives  who  lack  legal  training 
and  experience.  The  effect,  in  almost  every  case,  if  the  device 
were  used  very  much,  would  be  much  more  radical  than  is  true 
of  the  advisory  opinion;  the  judiciary  would  at  least  exercise 
very  great  influence  with  the  other  departments  and  might 
even  actually  perform  executive  and  legislative  duties  in  their 
proper  persons. 

The  older  expedients  look  to  the  co-operation  of  the  executive 
and  judicial  departments,  quite  probably  with  the  design  of 
restraining  a  too-aggressive  popular  legislature.  Thus  in  1777, 
the  New  York  constitution  provided  that  the  governor,  chancel- 
lor and  judges  of  the  supreme  court  should  constitute  a  council 
to  revise  all  bills  before  or  after  passage  by  the  general  assembly, 
and  a  majority  of  this  council  could  force  repassage  by  two- 
thirds  of  both  houses.^  As  the  judiciary  had  a  majority  repre- 
sentation, this  practically  placed  in  their  hands  a  suspensive 

^  "And  whereas  laws  inconsistent  with  the  spirit  of  this  constitution, 
or  with  the  public  good,  may  be  hastily  and  unadvisedly  passed:  Be  it 


OTHER  FORMS  OF  JUDICIAL  INFLUENCE  239 

veto  quite  similar  to  that  now  enjoyed  by  the  president  of  the 
United  States,  and  besides  gave  them  the  privilege  of  criticising 
pending  bills.  The  revisory  council  did  not  survive  a  renova- 
tion of  the  constitution  in  1821.  There  was  very  little  oppo- 
sition to  dropping  it.  Not  much  of  a  case  is  made  out  against 
it  in  the  convention  debates,  yet  its  downfall  was  certain  from 
the  start,  due  rather  to  prejudice  or  an  objection  on  principle 
than  to  actual  grievances.  Some  of  the  arguments  urged  against 
it  are  essentially  identical  with  arguments  made  against  the 
advisory  opinion. ^  A  few  claimed  that  the  judges  were  the 
real  legislature,  under  this  system,  and  could  defeat  the  will 
of  the  people.  Mr.  Piatt  of  Oneida  looked  up  the  record  of  the 
council  and  found  that  of  the  sixty-five  hundred  and  ninety  bills 
passed  by  the  legislature  from  1777  to  1815,  the  council  had 
vetoed  one  hundred  twenty,  or  less  than  two  percent,  and  only 
forty-three  of  these  on  grounds  of  expediency.     Seventeen  had 

ordained,  that  the  governor  for  the  time  being,  the  chancellor,  and  the 
judges  of  the  supreme  court,  or  any  tv/o  of  them,  together  with  the  governor, 
shall  be,  and  hereby  are,  constituted  a  council  to  revise  all  bills  about  to  be 
passed  into  laws  by  the  legislature.  .  .  .  And  that  all  bills  which  have 
passed  the  senate  and  assembly  shall,  before  they  become  laws,  be  presented 
to  the  said  council  for  their  revisal  and  consideration;  and  if,  upon  such 
revision  and  consideration,  it  should  appear  improper  to  the  said  council, 
or  a  majority  of  them,  that  the  said  bill  should  become  a  law  of  this  State, 
that  they  return  the  same,  together  wath  their  objections  thereto  in  writing, 
to  the  senate  or  house  of  assembly  (in  whichsoever  the  same  shall  have 
originated)  who  shall  enter  the  objections  sent  down  by  the  council  at  large 
in  their  minutes  and  proceed  to  reconsider  said  bill.  But  if,  after  such 
reconsideration,  two-thirds  of  said  senate  or  house  of  assembly  shall,  not- 
withstanding the  said  objections,  agree  to  pass  the  same,  it  shall,  together 
with  the  objections,  be  sent  to  the  other  branch  of  the  legislature,  where 
it  shall  also  be  reconsidered,  and,  if  approved  by  two-thirds  of  the  members 
present,  shall  be  a  law." — From  section  3  of  the  N.  Y.  Const,  of  1777. 

2  Cf.  a  later  criticism  by  Baldwin — Amer.  Judiciary,  p.  31 :  "An  obvious 
objection  to  this  method  of  legislation  is  that  the  judges  who,  as  members 
of  a  coimcil  of  revision,  find  nothing  objectionable  in  a  bill  presented  for 
their  scrutiny,  must  naturally  have  a  certain  pride  of  opinion  to  conquer 
before,  should  its  constitutionaUty  become  afterward  the  subject  of  litigation 


240      DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

passed  over  the  council's  veto.  But  the  justification  was 
futile  and,  as  Mr.  Root  said,  merely  a  "requiem."^ 

It  will  be  recalled  that  a  serious  effort  was  made  by  Madison, 
Gouverneur  Morris  and  others  to  include  this  revisory  council 
plan  in  the  federal  constitution,^  and  that  the  failure  of  the 
movement  was  possibly  due  to  a  feeling  that  the  legislature 
would  be  sufi&ciently  checked  by  a  presidential  veto  coupled 
with  a  judicial  power  to  declare  acts  null  and  void.  The  scheme 
met  with  a  better  reception  in  Ilhnois,  where  it  was  received 
into  the  constitution  of  1818  (Art.  Ill,  sec.  19)  in  almost  the 
exact  words  of  the  New  York  model.  But  here  again  it  lasted 
only  until  a  new  constitution  was  framed,  for  it  does  not  appear 
in  the  constitution  of  1848.  It  is  beUeved  that  the  council 
of  revision  has  not  found  a  place  in  any  of  our  State  constitu- 
tions since  that  time.  In  a  letter  of  1790,  President  Washing- 
ton intimated  that  the  judiciary  system  might  be  perfected 
more  readily  if  the  results  of  judicial  experience  were  communi- 

before  them,  they  could  be  in  a  frame  of  mind  to  render  an  unprejudiced 
judgment.  One  of  the  bills  which  came  under  the  eye  of  Chancellor  Kent 
as  a  member  of  the  Council  was  afterward  the  source  of  controversy  before 
him  in  court.  He  adhered  to  his  original  views,  but  was  over-ruled  by  the 
Supreme  Court  of  the  United  States."  This  is  the  inherent  positivity  of 
human  nature  and  might  be  illustrated  as  well  by  the  characteristic  tenacity 
of  opinion  exhibited  by  judges  when  dealing  with  a  case  already  decided 
by  them  in  a  lower  court.  But  judges  have  also  been  known  to  change  their 
minds  upon  reconsideration,  both  when  their  first  opinion  was  extra-judicial 
and  when  it  was  a  formal  decision.  So  the  criticism  has  not  much  cogency 
after  all.  As  to  the  particular  instance  given,  it  might  be  pointed  out  that 
the  opinion  of  Chancellor  Kent  was  approved  by  all  the  judges  of  the  New 
York  Court  of  Errors  (Gibbons  v.  Ogden— 17  Johns.  488)  before  the  case 
was  taken  to  the  supreme  court  of  the  United  States;  also  that  Chancellor 
Kent  and  the  Court  of  Errors  paid  no  attention  to  the  approval  of  the 
Council  of  Revision,  but  relied  on  an  earlier  case  (Livingston  v.  Van  Ingen, 
9  Johns.  507). 

3  Deb.  N.  Y.  Conv.  1821,  p.  47. 

*  See  pp.  55-57  supra. 


OTHER  FORMS  OF  JUDICIAL  INFLUENCE         241 

cated  to  him,  but  there  is  no  record  that  the  judges  ever  availed 
themselves   of   this   invitation.^ 

Co-operation  between  the  legislature  and  the  judiciary- 
has  been  encouraged  in  various  ways.  The  lUinois  convention 
of  1870  recognized  that  the  judges,  both  of  the  supreme  court 
and  of  lower  courts,  were  especially  well  qualified  to  know  the 
imperfections  and  lacunae  in  the  laws  as  they  existed,  both 
because  of  their  legal  training  and  experience  and  because  of 
their  daily  application  of  the  laws  to  particular  sets  of  facts. 
They  provided  that  the  judges  of  all  courts  of  record  should 
report  annually  to  the  judges  of  the  supreme  court  and  that 
the  latter  should  report  to  the  legislature  upon  defects  or  omis- 
sions in  the  laws  and  should  suggest  appropriate  corrective 
legislation.^  The  Nebraska  convention  of  1875  copied  this 
provision  in  part,^  and  the  Colorado  constitution  of  1876  re- 

*  "I  have  always  been  persuaded,  that  the  stability  and  success  of  the 
national  government,  and  consequently  the  happiness  of  the  people  of  the 
United  States,  would  depend  in  a  considerable  degree,  on  the  interpretation 
and  execution  of  its  laws.  In  my  opinion,  therefore,  it  is  important,  that 
the  judiciary  system  should  not  only  be  independent  in  its  operations, 
but  as  perfect  as  possible  in  its  formation.  As  you  are  about  to  commence 
your  first  circuit,  and  many  things  may  occur  in  such  an  unexplored  field, 
which  it  would  be  useful  should  be  known,  I  think  it  proper  to  acquaint 
you,  that  it  will  be  agreeable  to  me  to  receive  such  information  and  remarks 
on  this  subject,  as  you  shall  from  time  to  time  judge  expedient  to  communi- 
cate."— Spark's  Washington,  X,  p.  86. 

« '^\11  judges  of  courts  of  record,  inferior  to  the  supreme  court,  shall, 
on  or  before  the  first  day  of  June  of  each  year,  report  in  writing  to  the  judges 
of  the  supreme  court  such  defects  and  omissions  in  the  laws  as  their  exper- 
ience may  suggest;  and  the  judges  of  the  supreme  court  shall,  on  or  before 
the  first  day  of  January  of  each  year,  report  in  writing  to  the  governor  such 
defects  and  omissions  in  the  constitution  and  laws  as  they  may  find  to  exist, 
together  with  appropriate  forms  of  bills  to  cure  such  defects  and  omissions 
in  the  laws."— Art.  VI,  s.  31,  of  the  Constitution  of  1870. 

'  "The  officers  of  the  executive  department  and  of  all  the  public  institu- 
tions of  the  State  shall,  at  least  ten  days  preceding  each  regular  session  oj 
the  legislature,  severally  report  to  the  governor,  who  shall  transmit  such 
reports  to  the  legislature,  together  with  the  reports  of  the  judges  of  the 


242  DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

produces  it  almost  verbatim.^  Since  then  it  has  appeared, 
with  various  minor  changes,  in  the  Florida  constitution  of 
1885,^  the  Idaho  constitution  of  1889/*^  the  Washington  con- 
stitution of  1889,11  and  the  Utah  constitution  of  1895.12  One 
broad  distinction  may  be  noticed — the  governor,  or  (in  Florida) 
the  attorney-general,  may  be  free  to  submit  to  the  legislature 
only  such  part  of  the  judicial  suggestions  as  he  deems  advisable 
(Florida,  Ilhnois,  Utah,  Washington),  or  he  may  be  required 
by  the  constitution  to  transmit  the  report  and  suggestions 
entire  (Colorado,  Idaho,  Nebraska).  In  the  form  in  which 
this  power  of  suggesting  legislation  is  found  in  the  Venezuelan 
constitution  of  1904,  the  executive  department  has  no  share 
in  it  at  all.  The  supreme  court  includes  in  its  biennial  report 
to  the  National  Congress  a  statement  of  the  elements  unfavor- 
able to  a  uniformity  in  civil,  criminal  and  commercial  legisla- 
tion.i^  The  Panama  constitution  of  1904  goes  farther  still, 
for  it  prohibits  the  enactment  of  legislation  of  a  civil  nature 
or  touching  judicial  procedure  except  upon  the  suggestion  of 
the  special  committees  of  the  Assembly,  or  of  the  justices  of 
the  supreme  court  of  justice.i^  An  investigation  of  the  working 
of  these  devices  is  not  within  the  scope  of  this  work.i^ 

supreme  court,  of  defects  in  the  constitution  and  laws." — From  Art.  V,  s. 
22,  of  the  Constitution  of  1875. 

8  See  Art.  VI,  s.  27. 

9  Art.  V,  s.  13. 

10  Art.  V,  s.  25. 
"  Art.  IV,  s.  25. 

"  Art.  VIII,  s.  22. 

"  "Los  inconvenientes  que,  d  su  juicio,  se  opongan  d  la  uniformidad  de 
la  legislaci6n  civil,  criminal  y  mercantil. " — Art.  96,  |P|^  |j| 

^* "  Exceptuanse  de  esta  disposici6n  las  leyes  sobre  materia  civil ^^y 
procedimiento  judicial,  que  no  podrdn  ser  modificadas  sino  d  propuesta  de 
las  Comisiones  especiales  de  la  Asamblea,  6  de  los  Magistrados  de  la  Corte 
Suprema  de  Justicia. "— From  Art.  98.  ^^^PH-* 

1'  However,  an  evidence  that  the  Colorado  provision  is  not  a  dead  letter 
may  be  found  in  the  1897  message  of  Governor  Mclntire:  "I  herewith 
transmit  five  several  bills  prepared  by  the  honorable  judges  of  the  supreme 


OTHER  FORMS  OF  JUDICIAL  INFLUENCE  243 

In  some  of  the  Central  and  South  American  republics,  there 
is  a  still  more  intimate  intermingling  of  the  two  departments, 
for  the  judiciary  is  entrusted  with  the  actual  exercise  of  certain 
legislative  functions.  They  seem  to  lack  only  a  vote  in  the 
assembly  in  a  few  instances.  The  initiative  in  the  formation 
of  bills  upon  judicial  matters  is  assigned  to  them  in  Peru,^^ 
Guatemala,"  San  Domingo,^^  Ecuador,^^  Honduras,^^  and  Nicar- 
agua.^^ The  initiation  of  all  legislation  is  given  without  re- 
striction to  the  deputies,  president  and  supreme  court  in  Salva- 
dor,^ but  in  another  article  there  is  an  indication  that  the 
justices  are  to  use  this  right  only  to  introduce  reforms  necessary 
to  cure  imperfections  or  deficiencies  in  the  existing  law  which 
they  have  noted  in  applying  it.^  In  Colombia  the  judges  are 
even  privileged  to  be  heard  in  debate,  on  bills  relating  to  civil 
matters  or  judicial  procedure,^  and  the  same  result  appears 

court  for  the  correction  of  certain  defects  in  the  laws  of  the  state  in  obedience 
to  Section  27  of  Article  VI,  of  the  State  constitution,  and  by  them  to  me 
transmitted,  together  with  certain  resolutions  passed  at  a  meeting  composed 
of  seven  district  judges  and  one  county  judge,  and  by  them  reported  to  the 
judges  of  the  Supreme  Coiurt,  who  in  turn  transmitted  them  to  the  execu- 
tive. I  reconmiend  the  passage  of  the  bills  transmitted  and  the  considera- 
tion of  the  resolutions  indicated. " — HJ.  1897,  p.  46. 

i«  Constitution  of  1860,  Art.  67. 

"  Constitution  of  1879,  Art.  56. 

"  Constitution  of  1896,  Art.  27. 

1"  Constitution  of  1897,  Art.  67. 

20  Constitution  of  1904,  Art.  76. 

21  Constitution  of  1905,  Art.  64. 

22  "Tienen  exclusivamente  la  iniciativa  de  ley  los  Diputados,  el  Presi- 
dente  de  la  Republica  por  conducto  de  sus  Ministros  y  la  Corte  Suprema  de 
Justicia. "— Art.  71,  of  the  Constitution  of  1886. 

23"Hacer  uso  del  derecho  de  iniciativa  manifestando  directamente  al 
Poder  Legislativo  la  inconveniencia  de  las  leyes  y  vaclos  que  hubiese  notado 
para  su  aplicacion,  indicando  las  reformas  de  que  sean  susceptibles. " — Art. 
102,  s.  4. 

2*  Constitution  of  1886,  Art.  84. 


244   DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

to  be  attained  in  Salvador,^  Honduras,^^  and  Nicaragua,^^  by  a 
provision  that  bills  (not  introduced  by  the  supreme  court) 
modifying  or  repeaHng  any  section  of  the  codes  or  affecting  the 
administration  of  justice  shall  not  be  passed  until  the  opinion  of 
the  supreme  court  has  been  heard.  The  congress  may  be 
empowered  to  fix  a  time  limit  for  the  giving  of  that  opinion 
(as  in  Honduras)  or  the  justices  may  choose  their  own  time, 
within  the  current  or  following  session,  according  to  the  impor- 
tance and  urgency  of  the  measure  (as  in  Salvador  and  Nicara- 
gua). In  Salvador  the  provision  does  not  apply  to  laws  of 
a  political,  economic  or  administrative  order. 

These  schemes  really  differ  but  Uttle  from  the  advisory 
opinion  as  appUed  to  the  legislature.  In  effect  we  have  here  a 
compulsory  advisory  opinion  upon  certain  kinds  of  pending 
bills.^^  The  most  saUent  objection  to  such  an  arrangement  is 
that  it  makes  a  very  serious  demand  upon  the  time  of  the 
judiciary.  It  would  be  unworkable  in  any  State  of  the  United 
States  until  the  legislatures  greatly  curtail  the  number  of  bills 
considered  in  a  single  session.  There  can  be  no  doubt  that 
an  advisory  revision  of  pending  bills  by  the  judges  would 
result  in  a  marked  improvement  in  the  quaHty  of  our  legislation, 
but  an  insistence  upon  higher  standards  in  choosing  legislators 
would  obviate  the  need  for  such  advice  save  in  occasional 
instances.  It  is  to  be  understood,  of  course,  that  the  legislature 
is  free  in  any  case  to  pass  finally  upon  the  questions  of  poUcy 

25  Constitution  of  1886,  Art.  79. 

2«  Constitution  of  1904,  Art.  83. 

"  Constitution  of  1905,  Art.  71. 

28  Cf.  the  provision  included  by  the  Iowa  legislature  of  1913  in  its 
initiative  and  referendum  proposal.  The  secretary  of  state  shall  submit 
all  measures  initiated  by  the  people  to  the  supreme  court  for  an  opinion 
concerning  their  constitutionality.  The  court  must  report  within  twenty 
days,  and  if  the  report  is  unfavorable  as  to  constitutionaUty,  the  secretary 
of  state  must  refuse  to  submit  the  measure  to  the  people.  Amer.  Year 
Book  1913,  p.  77. 


OTHER  FORMS  OF  JUDICIAL  INFLUENCE  245 

involved,  that  is  to  decide  whether  it  is  advisable  that  the  bill 
revised  should  be  made  law. 

There  is  a  middle  ground  between  the  compulsory  form  of 
advisory  opinion  just  discussed  and  the  optional  form  which 
exists  in  the  United  States.  This  is  illustrated  in  the  constitu- 
tional clauses  of  Colombia  and  Panama  mentioned  in  an  earHer 
chapter .^^  Here  there  is  a  compulsory  reference  to  the  supreme 
court  only  when  there  is  an  open  disagreement  between  the 
legislature  and  the  president  as  to  the  constitutionality  of  a  mea- 
sure awaiting  the  latter's  signature.  This  seems  very  com- 
mendable. If  there  is  a  real  difference  of  opinion  between 
these  two  governmental  organs  upon  the  question  of  constitu- 
tionaUty,  the  ideal  method  of  settlement  is  for  the  judiciary  to 
decide.  That  is  precisely  the  question  they  will  decide  anyway 
in  case  of  subsequent  Utigation  involving  the  measure,^^  and 
why  should  they  not  decide  it  while  the  matter  is  res  integra? 
Certainly  a  subsequent  repassage  of  the  bill  by  a  two-thirds 
majority  in  both  houses  is  not  very  satisfactory  proof  that  it 
is  constitutional,  and,  as  we  well  know,  will  count  for  nothing 
with  a  court  in  its  dealing  with  the  law  later.  In  the  two 
constitutions  mentioned,  the  decision  of  the  court  in  favor  of 
the  bill's  constitutionahty  forces  the  executive  approval,  while 
an  adverse  decision  retires  it  "  to  the  archives. "  This  is  a  per- 
fectly logical  result.  If  the  president's  sole  objection  is  that 
the  measure  is  unconstitutional  and  the  court  disagrees  with 
him,  his  approval  should  inevitably  follow.  On  the  other  hand, 
if  the  court  agrees  with  the  executive,  the  bill  should  fail.  There 
is  no  reason  why  the  judgment  of  either  the  executive  or  legis- 
lature should  prevail  against  that  of  the  other  two  departments 
of  government.  If  the  executive  disapproves  the  bill  partly 
on  constitutional  and  partly  on  poHtical  grounds,  the  situation 
is  more  complex.  A  sound  poUtical  science  would  seem  to 
require  that  both  approval  of  the  bill  by  the  supreme  court 

"See  p.  94  supra. 

'"Under  the  American  doctrine  of  "judicial  supremacy." 


246     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

and  its  repassage  by  two-thirds  of  the  legislature  should  be 
necessary  to  command  the  executive  sanction  and  promulgation. 
An  arrangement  of  this  description  would  probably  prevent 
some  of  the  chief  executives  of  our  States  sheltering  their 
poHtical  objections  to  a  measure  behind  alleged  unconstitution- 
ality, as  they  occasionally  do  at  present. 

Lastly,  it  will  not  be  amiss  to  point  out  that  the  judges  may 
be  called  upon  to  advise  officials  of  the  other  departments 
constituted  for  the  time  being  as  a  court  and  performing  func- 
tions of  a  judicial  nature.  We  have  seen  how  the  House  of 
Lords,  when  sitting  as  a  court,  has  commanded  the  assistance 
of  the  EngUsh  judges  from  the  Middle  Ages  to  the  present 
day.^^  Similarly,  after  our  separation  from  England,  the  upper 
house  of  our  different  legislatures  was  often  joined  with  the 
judges  in  the  exercise  of  a  judicial  function.  In  one  State,  the 
upper  house  and  the  judges  formed  the  highest  court  of  appeal.^^ 
More  commonly  the  upper  house  is  made  the  court  of  impeach- 
ment, and  it  may  be  required  that  the  judges  assist  them  regu- 
larly,^ or  that  the  chief  justice  preside  over  the  court  when  the 
chief  executive  is  being  tried,  as  in  the  federal  constitution.^ 
That  the  chief  justice  is  present  in  an  advisory  capacity  and 
not  as  a  regular  member  of  the  court  is  made  clear  by  the  reser- 
vation in  the  New  Hampshire  constitution  that  he  shall  "have 
no  vote  therein."  Hamilton,  in  explaining  why  the  supreme 
court  was  not  combined  with  the  senate  to  form  a  court  of 
impeachment  in  the  federal  constitution,  says  if  the  chief 
justice  presides  over  the  court  "the  benefits  of  that  union  will 
be  obtained  .  .  .  while  the  inconveniences  of  an  entire  incor- 
poration .  .  .  will  be  substantially  avoided.  "^^  Relations 
of  somewhat  the  same  nature  existed  between  the  judiciary 

'*  See  pp.  18-25  supra. 

«N.  Y.  Constitution  of  1777,  Art.  32. 

=»  N.  Y.  Const,  ibid.,  and  South  Carolina  Const,  of  1778,  Art.  23. 

"  N.  H.  Const,  of  1792,  Sec.  40;  and  Conn.  Const,  of  1818,  Art.  IX,  s.  2. 

"The  Federalist,  No.  LXV. 


OTHER  FORMS  OF  JUDICIAL  INFLUENCE  247 

and  executive  in  those  rare  instances  where  the  latter  performed 
judicial  duties.  Pennsylvania,  in  the  constitution  of  1776, 
made  the  president  and  council  the  court  of  impeachments 
and  gave  them  the  privilege  of  "taking  to  their  assistance,  for 
advice  only,  the  justices  of  the  supreme  court.  "^®  Vermont 
adopted  precisely  the  same  plan  in  1111 P  In  neither  State 
did  it  survive  for  very  many  years.  Pennsylvania  discarded 
it  in  1790.  In  Vermont  it  was  continued  in  the  constitutions 
of  1786  and  1793,^^  but  was  changed  by  an  amendment  in  1836.^^ 
No  similar  clause  is  found  in  existing  State  constitutions,  but 
the  New  York  constitution  still  provides  that  the  court  of  im- 
peachment shall  consist  of  the  senate  and  the  judges  of  the  high- 
est court,^°  and  it  is  very  common  to  require  that  the  chief 
justice  shall  preside  either  in  general  or  at  the  impeachment  of 
certain  ofl&cials. 

^  Sec.  20,  of  the  Frame  of  Government. 
'^  Sec.  18,  of  the  Frame  of  Government. 
3' Sec.  11,  of  the  Frame  of  Government. 
"Poore,  1884. 
"Art.  VI,  s.  13. 


CHAPTER  V 
THE  PLACE  OF  THE  ADVISORY  OPINION 

In  the  pure  despotic  monarchy  of  the  Middle  Ages,  the 
government,  i.e.,  the  monarch,  knew  no  Hmitations.  State 
and  government  were  identical.  The  increasing  complexity 
of  the  problems  in  later  political  societies,  together  with  the 
crystallization  of  that  intangible  ethos  we  call  democratic  con- 
sciousness, in  the  course  of  time  forced  a  division  of  govern- 
mental tasks,  an  apportionment  of  duties  functionally  different 
inter  se  to  different  state  officials.  As  these  departments  be- 
come estabhshed,  they  attain  the  dignity  of  state  organs.  The 
number  of  departments  is  of  no  significance.  A  priori,  a  quad- 
rupHfication  or  a  duaUsm  in  government  could  be  elaborated 
as  easily  and  as  logically  as  the  present  tripartite  arrangement. 
It  is  in  a  sense  accidental  that  an  imperfect  trichotomy  of  the 
eighteenth  century  suggested  the  ideal  of  Montesquieu  which 
has  been  a  guiding  star  to  the  repubhcs  of  the  two  Americas. 

One  of  the  most  noteworthy  results  of  the  separation  of  pow- 
ers theory^  is  the  erection  of  a  relatively  independent  depart- 
ment of  government  known  as  the  judiciary.  Stated  broadly, 
its  function  is  to  interpret  and  apply  the  law  of  the  land.  This 
involves  determining  what  is  the  law  of  the  land  as  well  as 
expounding  its  meaning.  But  in  the  United  States  constitution- 
al system  it  is  understood  that  the  judges  are  not  authorized 
to  declare  and  explain  the  law,  in  the  exercise  of  their  judicial 
powers,  save  on  certain  occasions.  They  must  act  only  when 
real  litigations  are  brought  before  them  for  settlement.  If 
they  "pronounce  upon  a  law  without  resting  upon  a  case, 
(they)  clearly  step  beyond  (their)  sphere,  and  invade  that  of 

^  For  a  brief  statement  of  the  theory  as  it  is  understood  by  publicists 
^  the  United  States,  see  pp.  168-169  supra. 


THE  PLACE  OF  THE  ADVISORY  OPINION  249 

legislative  authority."^  Furthermore,  it  is  considered  essential 
that  the  adjudication  be  followed  (if  necessary)  by  an  execution 
carrying  it  into  effect.^  In  strict  law,  then,  a  decision  will 
not  be  given  unless  it  will  be  a  final  pronouncement  upon  the 
rights  of  the  parties  to  an  action,  nor  will  a  decision  be  given 
upon  points  not  necessarily  involved  in  dealing  with  the  pending 
case,  even  at  the  request  of  another  department  of  govern- 
ment.'* But  perhaps  an  exception  may  be  made  where  there 
is  an  important  question  that  affects  the  pubUc,  if  an  opinion 
is  necessary  to  prevent  future  conflicting  decisions.^ 

In  the  strict  exercise  of  the  judicial  power  just  described, 
the  judges  are  inevitably  brought  into  contact  with  the  other 
departments  in  many  ways.  They  may  often  clash  with  the 
law-giving  body  through  a  disagreement  as  to  the  constitutional 
limitations  imposed  upon  legislation.  It  is  possible  that  they 
may  have  to  decide  which  of  two  bodies  is  the  lawful  legislature, 
in  order  to  know  what  is  law.^  More  frequently  the  executive 
department  will  feel  the  weight  of  judicial  authority,  since 
practically  all  executive  officials  may  be  summoned  before 
a  court  to  answer  for  wrongs  committed  against  a  private 
citizen.  The  title  by  which  they  claim  to  hold  office  may  be 
questioned,  they  may  be  enjoined  from  the  performance  of 
certain  acts,  they  may  be  commanded  to  carry  out  certain 
tasks.  The  president  is  beyond  the  reach  of  the  judiciary  and 
can  be  brought  to  account  only  by  impeachment.  This  seems 
to  be  true  of  the  governor  too  in  some  States^  but  there  is  a 
conffict  of  authority  on  the  question.® 

» De  Tocqueville,  Dem.  in  Amer.  I,  Ch.  6. 

« Taylor  v.  Place,  4  R.  I.  324;  Gordon  v.  U.  S.,  117  U.  S.  697,  at  p.  704. 

*  Wyatt  V.  State  Board  of  Equalization,  74  N.  H.  552;  State  v.  Baugh- 
man,  38  Ohio  State,  455;  and  cf.  Queen  v.  Robertson,  6  Can.  S.  C.  R.  127. 

*  Matter  of  Madden,  148  N.  Y.  136;  Matter  of  Emmett,  150  N.  Y.  538; 
Matter  of  Fairchild,  151  N.  Y.  359;  and  Matter  of  Norton,  158  N.  Y.  130. 

« Statement  and  Questions  Submitted,  etc.,  70  Me.  600. 
'  People  ex  rel.  v.  Bissell,  19  111.  229. 

'  Baldwin,  American  Judiciaiy,  p.  48,  and  see  In  the  matter  of  Hughes, 
61  N.  C.  57. 


250  DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

Furthermore  the  activities  of  members  of  the  judiciary  are 
not  confined  to  labors  that  are  purely  judicial  in  character. 
"It  is  safe  to  assert  that  in  no  State  are  the  functions  of  the 
courts  purely  judicial."^  There  are  many  governmental  tasks 
other  than  the  adjustment  of  private  disputes  in  htigated  cases 
which  call  for  the  consistent,  analytical  treatment  character- 
istic of  the  legal  mind — tasks  for  which  the  judges  are  pre- 
eminently fitted,  and  which  they  could  perform  more  readily 
than  other  officials.  So  legislators  have  found  the  judiciary 
"a  convenient  depositary  of  many  quasi-legislative  and  quasi- 
executive  functions.  "^^  It  is  not  easy  to  determine  how  far 
the  judiciary  will  acquiesce  in  such  a  deposition.^^  There  is 
no  general  principle,  but  a  number  of  isolated  rules  may  be 
found  in  different  States.  It  seems  settled  both  in  the  State 
and  federal  governments  that  the  legislature  cannot  require 
a  court  to  go  through  the  form  of  a  trial  and  pass  upon  private 
claims,  where  the  decision  is  advisory  only  and  subject  to  legis- 
lative or  executive  review.^^  In  other  words,  if  the  legislature 
intends  to  impose  judicial  duties  upon  the  courts,  it  must 
provide  for  their  exercise  in  a  judicial  manner.^^  The  legisla- 
ture should  not  exercise  judicial  powers  at  all.^'*  Conversely, 
the  judiciary  will  do  nothing  which  will  be  a  clear  interference 
with  the  independent  rights  and  duties  of  the  other  depart- 
ments,^^ or  will'  be  merely  a  criticism  of  a  coordinate  branch 
of  the  govemment.^^ 

"Baldwin,  op.  cit.,  p.  22. 

1°  Baldwin,  op.  cit.,  p.  23. 

"  In  some  States  it  has  been  said  that  the  legislature  could  not  impose 
non-judicial  duties  upon  the  judges  at  all.  In  the  matter  of  the  Application 
of  the  Senate,  10  Minn.  78;  and  In  re  Opinion  of  the  Judges,  25  Okla.  76. 

"Dinan  v.  Swig,  223  Mass.  516. 

"Haybum's  Case,  2  DaU.  409;  and  cf.  U.  S.  v.  Yale  Todd,  reported 
as  a  note  to  U.  S.  v.  Ferreira,  13  How.  40. 

"  Taylor  v.  Place,  4  R.  I.  324. 

»  State  V.  Fleming,  70  Nebr.  523;  Reply  of  the  Judges,  etc.,  Zd>  Conn. 
586;  and  Opm.s  of  the  Justices,  etc.,  64  N.  C.  785. 

"  Opin.  of  the  Justices,  56  N.  H.  574;  and  In  re  SR.  No.  4,  54  Colo.  262. 


THE  PLACE  OF  THE  ADVISORY  OPINION  251 

It  is  common  knowledge  that  the  separation  of  powers  in 
the  United  States  is  far  from  complete.  Each  department 
performs  many  tasks  that  do  not  properly  fall  within  its  juris- 
diction, and  very  often  the  same  set  of  facts  will  be  dealt  with 
by  different  departments.  Also  it  is  generally  recognized  that 
a  complete  separation  of  powers  would  not  merely  be  impractica- 
ble, but  fatal  to  the  state  wherein  it  existed.  But  where  should 
we  draw  the  Une?  It  would  be  difficult  to  generalize  so  as 
to  cover  all  possible  cases.  Each  must  be  decided  with  refer- 
ence to  the  attendant  circumstances.  But  one  fundamental 
guiding  principle  should  be  kept  before  our  eyes  at  all  times — 
the  separation  of  powers  should  be  an  instrument  both  of  demo- 
cracy and  of  efficiency.  There  are  daily  evidences  that  the 
separation  has  gone  too  far  in  the  United  States,  that  it  is 
responsible  for  a  great  waste  of  governmental  energy.  We 
witness  a  deplorable  lack  of  co-operation  between  the  different 
organs  of  the  state,  a  deficiency  of  which  the  expense  to  the 
people  is  enormous.  The  legislature  makes  bUnd  appropria- 
tions, sometimes  extravagant,  sometimes  inadequate,  for  exe- 
cutive expenses.  Laws  are  brought  into  existence  at  much 
travail  and  expense  only  to  be  declared  nuUities  as  soon  as 
brought  before  the  court  of  last  resort.  Professor  Baldwin 
estimates  that  one  out  of  every  three  hundred  statutes  passed 
by  our  law-making  bodies  is  declared  never  to  have  been  law 
at  all."  What  is  still  worse,  often  these  unconstitutional 
"laws"  go  unimpeached  for  years,  while  private  rights  are  based 
upon  their  vahdity,  only  to  meet  disaster  in  the  crucial  test. 
Meanwhile,  in  our  jurisprudence,  there  is  a  conclusive  presump- 
tion that  every  citizen,  including  the  officials  of  the  executive 
and  legislative  departments,  knows  the  law,  although  in  fact 
it  is  impossible  for  anyone  to  know  it.^^ 

Lack  of  space  forbids  detaihng  more  of  the  innumerable 
examples  of  a  failure  of  our  governmental  organs  to  work  to- 

"  Amer.  Judiciary,  p.  107. 

*«  "Since  the  doubtful  point  may  be  the  true  construction  of  the  fun- 
damental law  of  the  Union,  the  President  and  Congress  may  be  left  in  un- 


252     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

gather;  they  are  within  the  knowledge  of  every  reader.  Embar- 
rassments, tangles,  missteps,  inconsistencies,  discords  are  of 
every^day  occurrence  in  our  public  affairs,  and  they  all  spell 
waste.  The  greatest  problem  before  poUtical  scientists  today 
is  to  reconcile  democracy  and  efficiency.  The  world  has  made 
marked  progress  in  solving  that  difficult  problem  of  the  recon- 
ciliation of  government  with  liberty  of  which  Professor  Burgess 
has  written  so  entertainingly  in  his  recent  book.^^  This  critical 
student  of  political  society  declares  that  the  American  theory  of 
government  offers  the  most  satisfactory  solution  of  his  problem 
that  has  yet  appeared,  and  that  the  solution  rests  fundamentally 
on  a  separation  of  powers  which  entrusts  the  guardianship  of 
individual  rights  to  a  fearless  and  independent  judiciary. 
With  this  we  agree;  but  the  solution  has  been  productive  of 
another  problem,  for  the  economic  principle  of  a  division  of 
labor  is  only  a  success  when  all  the  groups  are  complementary, 
working  in  harmony  towards  a  common  end.  It  is  as  if  there 
were  three  cragsmen  roped  together  for  the  ascent  of  a  cliff. 
The  success  of  the  expedition  depends  upon  the  mutual  help- 
fulness of  all  the  individuals.  If  each  one,  instead  of  anticipa- 
ting the  difficulties  ahead  of  his  companions  and  suggesting 
methods  for  circumventing  them,  contents  himself  with  com- 
menting on  reverses  only  when  they  are  suffered  and  criticizing 
past  errors,  what  a  wealth  of  effort  goes  to  waste.  And  surely 
no  independence  is  sacrificed  by  such  helpfulness — each  is 
still  a  "check"  upon  the  others  in  time  of  necessity.  Our 
present  political  problem  is  to  build  up  a  cordial  sympathy 
and  mutual  co-operation  between  the  three  departments  with- 
out affecting  the  solution  of  Professor  Burgess'  problem,  i.e., 

certainty  as  to  how  they  shall  shape  their  course.  With  the  best  wish  in 
the  world  to  act  conformably  to  the  Constitution,  these  authorities  have  no 
means  of  ascertaining  before  they  act  what,  in  the  view  of  its  authorized 
interpreters,  the  true  meaning  of  the  Constitution  is." — Bryce,  Amer. 
Commonwealth,  I,  pp.  352-3, 

"  Reconciliation  of  Government  with  Liberty  (1915). 


THE  PLACE  OF  THE  ADVISORY  OPINION  253 

without  interfering  with  the  domain  of  individual  Uberty  under 
the  constitution  or  the  independence  of  the  judiciary. 

Will  the  advisory  opinion  be  a  desirable  step  in  that  direc- 
tion? Before  we  attempt  to  answer  this  question  categorically, 
let  us  review  summarily  the  arguments  for  and  against  the 
device  as  they  have  been  brought  out  by  the  practice  in  our 
country.  As  generally  understood,  the  advisory  opinion  is  an 
opinion  rendered  by  the  highest  judicial  ofi&cers  in  the  state, 
acting  as  individuals  and  not  in  a  judicial  capacity,  in  response 
to  a  request  for  information  as  to  the  state  of  the  law  or  counsel 
as  to  the  constitutionality  of  proposed  action,  coming  from  the 
legislative  or  executive  branches  of  the  government.  The 
form  in  which  its  usefulness  appears  varies  with  the  question 
asked.  In  connection  with  pending  legislation,  it  is  designed 
to  improve  the  form  of  bills,  to  make  for  perspicuity,  consistency 
and  satisfactory  technic,  to  reduce  the  possibihty  of  enacting 
statutes  that  will  have  to  be  declared  null  and  void.  In  con- 
nection with  completed  legislation,  it  is  valuable  as  indicating 
to  the  legislative  department  the  need  for  further  legislation, 
as  furnishing  to  the  executive  department  a  construction  that 
will  insure  a  consistent  and,  in  all  probabiUty,  correct  adminis- 
tration of  the  statute,  as  informing  the  people  whether  what 
appears  to  be  law  is  actually  binding  upon  them,  in  whole  or 
in  part.  Why  should  it  be  necessary  for  these  groups  to  be 
unenlightened  by  the  wisdom  of  the  chosen  judicial  servants 
of  the  state,  until  some  individual  is  wiUing  to  devote  enough 
time  and  money  to  bring  the  matter  up  in  connection  with  a 
particular  set  of  facts?  We  know  too  that  there  are  many 
public  questions  that  can  with  difficulty  be  brought  before  a 
court  in  a  regular  case.  Not  only  would  an  opinion  often 
prevent  errors  on  the  part  of  the  pubUc,  doing  away  with  a 
great  deal  of  uncertainty  and  confusion,  but  it  would  in  many 
instances  save  the  taxpayers  considerable  expense.  The  cost 
of  enacting  an  unconstitutional  statute  and  then  going  through 
the  process  of  getting  it  declared  unconstitutional  is  a  dead 


254     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

loss  to  the  state's  treasury.  Again,  suppose  the  governor 
contemplates  calling  an  extra  session  of  the  legislature,  if  he 
is  not  satisfied  that  certain  things  are  prohibited  or  secured 
in  the  existing  statutes,  as  in  In  re  Opinion  of  the  Justices, 
73  New  Hampshire,  625.  Is  it  not  worth  while  economically 
to  assure  him  upon  this  point? 

We  have  dealt  in  detail  with  the  principal  objections  which 
have  been  raised  against  advisory  opinions  in  the  preceding 
pages.  The  complaint  that  legal  assistance  should  be  at  hand 
is  met  by  the  employment  of  amici  curiae.  Indeed,  if  it  is 
known  that  certain  parties  are  interested  in  the  question,  they 
may  be  invited  to  send  counsel  to  a  public  hearing  on  the  ques- 
tions of  law  involved.  But,  we  are  told,  questions  of  law  should 
be  settled  with  reference  to  particular  facts,  never  in  the  ab- 
stract. We  may  set  off  against  this  the  view  of  a  North 
CaroUna  chief  justice  that  "the  question  is  more  easy  of 
solution  now,  when  it  can  be  treated  as  a  dry  matter  of  con- 
stitutional law,  than  it  might  be  hereafter,  when  compHcated 
with  collateral  considerations.  "^"^  An  even  more  convincing 
answer  is  that  the  questions  are  not  "settled"  once  and 
for  all.  They  are  settled  provisionally  as  it  were.  The 
probabihty  is  that  the  opinion  will  prevail  in  later  cases,  for 
the  reason  that  in  all  probabihty  it  is  correct.  However,  sub- 
sequent Utigants  are  in  no  wise  hindered  from  demanding  a 
reconsideration  in  the  light  of  their  particular  case.  That  is 
the  beauty  of  the  scheme.  Though  it  binds  no  one — judges, 
interrogator  or  pubUc — still  it  will  carry  the  weight  of  high 
judicial  prestige  and  will  usually  be  followed  by  everyone 
concerned.  Still  this  has  been  the  crucial  objection  of  some 
critics.  They  complain  that  opinions  given  extra- judicially 
will  inevitably  influence  judicial  action  in  later  cases;  subordi- 
nate judges  would  not  venture  to  disregard  the  opinions  of 
their  brethren  in  the  supreme  court,  and  these  latter  justices, 
if  not  insensibly  biassed  by  their  earlier  conclusions,  will  be 

20  Opin.s  of  the  Justices,  etc.,  64  N.  C.  785. 


THE  PLACE  OF  THE  ADVISORY  OPINION  255 

slow  to  overcome  the  pride  of  first  convictions  and  admit  that 
they  have  changed  their  minds.  It  is  supposed  that  the  rights 
of  later  Utigants  will  at  least  be  prejudiced,  if  not  prejudged. 
There  are  two  points  of  weakness  in  this  attack.  The  first 
has  just  been  mentioned — there  is  no  obUgation  upon  any 
member  of  the  judiciary  to  adopt  the  principles  stated  in  an 
advisory  opinion.  Therefore  higher  and  lower  judges  alike 
should  treat  advisory  opinions  merely  as  evidence  of  truth. 
There  can  be  no  harm  in  this.  A  careful  and  impartial  judge 
will  naturally  welcome  any  expositions  or  considerations  that 
will  assist  him  in  reaching  a  correct  conclusion.  Why  should 
the  studied  reasoning  and  thoughtful  pronouncements  of  his 
learned  predecessors  not  play  an  important  part  in  his  investi- 
gations? Why  should  his  own  opinions  when  the  question  was 
first  presented  to  him  not  serve  as  a  starting  point  for  renewed 
examination,  if,  as  an  experienced  judge,  he  is  ever  mindful 
that  human  reasoning  is  potentially  erroneous?  The  decisions 
in  one  State  are  not  binding  upon  the  judges  of  another  State; 
yet  they  conunand  respectful  attention  and  in  many  cases 
are  followed  without  qualification.  It  is  by  no  means  unknown 
for  dicta  to  grow  into  rules  by  judicial  adoption  and  appHcation 
in  a  proper  case.  The  explanation  of  the  hearing  given  to 
dicta  and  extra-territorial  decisions  is  a  justification  for  the 
deference  to  advisory  opinions  as  well.  All  three  merit  the 
regard  of  judges  in  proportion  as  they  embody  learning  and 
logic  that  appeal  to  the  convictions.  This  brings  us  to  the 
second  weakness  in  the  indictment.  The  statement  that 
private  rights  will  suffer  injury  from  advisory  opinions  assumes 
a  superficiahty  and  incorrectness  in  such  opinions.  Injury 
could  scarcely  result  from  a  correct  statement  of  the  law.  Now 
as  a  matter  of  fact  advisory  opinions  have  been  remarkably 
sound.  We  do  not  hesitate  to  say  the  proportion  of  "  over- 
ruled" opinions  is  as  low  as  that  of  over-ruled  cases  of  the  same 
difficulty.  Why  should  this  not  be  so  as  a  rule?  It  must  not 
be  assumed  that  the  brevity  of  an  opinion  connotes  sUght 


256     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

investigation.^^  Many  of  them  bear  evidences  of  much  thought 
and  research.  It  is  quite  common  for  the  opinion  to  be  rested 
entirely  upon  regular  cases  cited  therein.  The  amount  of 
possible  injury  to  private  rights  inherent  in  such  opinions  is 
surely  minimal,  and  insignificant  as  compared  with  the  great 
benefit  to  the  commonwealth  as  a  whole. 

The  judges  themselves  have  not  always  looked  upon  the 
scheme  with  favor.  Now  and  then  they  have  expressed  their 
appreciation  of  the  honor  done  them  by  inquiries  from  the 
coordinate  branches  of  the  government,^  and  have  comphed 
with  the  requests  quite  "cheerfully."^  Even  though  not 
required  to  answer  by  the  constitution,  the  North  CaroHna 
justices  in  one  case  acknowledged  that  to  reply  would  be  merely 
a  duty  of  courtesy  and  respect.^  The  Massachusetts  justices 
on  the  whole  have  been  very  liberal  in  the  advisory  opinion 
practice,^  and  the  clause  seems  to  have  operated  very  success- 
fully in  that  State.^^  But  the  tendency  of  the  judges  in  most 
jurisdictions  is  to  discourage  the  practice.^^  They  have  in 
some  States  dealt  harshly  with  constitutional  advisory  opinion 
clauses,  and  in  one  instance  where  the  judges  refused  to  comply 
with  a  statute  authorizing  these  opinions,  they  went  out  of 
their  way  to  say  that  a  constitutional  clause  on  the  same  subject 

21  E.g.,  see  the  reporter's  note  in  Opin.  of  the  Justices,  52  N.  H.  622; 
and  the  remarks  of  Hayt,  C.  J.,  in  Parks  v.  Soldiers'  and  Sailors'  Home,  22 
Colo.   86. 

22  Opin.  of  the  Justices,  126  Mass.  547;  and  Opin.  of  the  Justices,  126 
Mass.  557. 

23  Opin.  of  the  Justices,  5  Mete.  591;  and  In  re  Railroad  Commis- 
sioners,  15  Nebr.  679. 

2*  Opin.  of  the  Justices,  31  N.  C.  App. 

25  "The  Justices  have  manifested  no  disposition  to  analyze  nicely  or 
construe  narrowly  their  duty  under  the  Constitution  to  give  opinions  to 
the  other  departments  of  government.  They  always  have  interpreted 
broadly  the  duty  imposed,  as  is  necessary  in  the  consideration  of  a  great 
charter  of  government." — In  re  Opin.  of  the  Justices,  214  Mass.  602. 

2«  See  p.  38  supra. 

27  See  Albany  L.  J.  LIX,  p.  21. 


THE  PLACE  OF  THE  ADVISORY  OPINION  257 

"does  not  address  itself  to  our  minds  with  any  favor. "^^  The 
reasons  given  for  this  opposition  do  not  seem  very  substantial, 
as  we  have  tried  to  show.  We  confess  it  is  not  particularly 
surprising  that  the  judges  take  this  position.  No  profession 
is  more  circumscribed  by  traditional  limitations.  The  concept 
of  precedent  is  the  corner-stone  of  judicial  habits  of  thought. 
This  has  its  advantages.  It  has  made  the  judiciary  the  greatest 
conservative  element  in  our  poUtical  societies.  But  it  can  be 
carried  too  far.  We  have  seen  recently  in  the  United  States 
that  too  stubborn  an  unresponsiveness  to  changed  conditions 
may  bring  about  a  popular  censorship  of  particular  judges  or 
decisions  that  is  dangerous  in  the  extreme  to  sound  constitu- 
tional theory.  Also,  apart  from  theoretical  antagonism,  the 
judges  cannot  fail  to  be  reluctant  to  undertake  a  task  that  will 
often  be  onerous,  embarrassing  and  unpleasant.  But  this  re- 
luctance should  be  overcome  if  the  task  is  a  duty,  the  perform- 
ance of  which  will  contribute  to  the  making  of  a  more  efficient 
governmental  system.  The  advisers  will  be  sufficiently  pro- 
tected in  ordinary  cases,  if  they  will  insist  with  one  voice  that 
their  opinions  are  advice  and  nothing  more.  In  embarrassing 
situations,  a  representation  to  the  questioner  that  it  is  unde- 
sirable to  reply  would  usually  produce  an  acquiescent  with- 
drawal. Finally  it  cannot  be  supposed  that  the  people  would 
permit  a  gross  abuse  of  the  consultative  function  to  go  un- 
checked. 

We  conclude  that  there  is  a  presumption  in  favor  of  the 
advisory  opinion  as  a  useful  instrument  of  government.  It 
seems  justified  in  theory;  it  has  proved  its  value  in  practice. 
In  solving  the  big  governmental  problem  of  the  day,  it  is  a 
step  in  the  right  direction.  It  is  one  of  the  few  surviving  agen- 
cies that  made  for  efficiency  in  the  monarchical  form  of  govern- 
ment. Is  it  not  possible  that  it  may  yet  serve  the  same  purpose 
equally  well  in  our  democracies? 

2*  In  the  matter  of  the  Application  of  the  Senate,  10  Minn.  78. 


APPENDIX  I 

The  Advisory  Opinion  Clauses  of  the  State  Constitutions  in 
Chronological  Order 

Massachusetts 

"Each  branch  of  the  legislature,  as  well  as  the  goveraor  and  council, 
shall  have  authority  to  require  the  opinions  of  the  justices  of  the  Supreme 
Judicial  Court  upon  important  questions  of  law,  and  upon  solemn  occa- 
sions."—Part  2,  Chapt.  Ill,  Art.  2,  of  the  Constitution  of  1780.  Poore, 
968. 

New  Hampshire 

"Each  branch  of  the  legislature,  as  well  as  the  president  and  council, 
shaU  have  authority  to  require  the  opinions  of  the  justices  of  the  Superior 
Court  upon  important  questions  of  law,  and  upon  solemn  occasions." — 
From  the  Article  on  the  Judiciary,  in  the  Constitution  of  1784.     Poore,  1290. 

This  was  repeated  as  Section  74  of  the  Constitution  of  1792,  with 
"governor"  substituted  for  "president."  In  this  form  it  was  repeated  as 
Article  73  of  Part  2  in  the  Constitution  of  1902.  Poore,  1305,  and 
Thorpe,  IV,  2509. 

Maine 

"They  shall  be  obliged  to  give  their  opinion  upon  important  questions 
of  law,  and  upon  solemn  occasions,  when  required  by  the  governor,  council, 
senate,  or  house  of  representatives." — Article  VI,  Section  3,  of  the  Con- 
stitution of  1820.    Poore,  796. 

Rhode  Island 

"They  shall  also  give  their  written  opinion  upon  any  question  of  law, 
whenever  requested  by  the  governor,  or  by  either  house  of  the  general 
assembly." — Article  X,  Section  3,  of  the  Constitution  of  1842.     Poore,  1611. 

This  was  reaffirmed  in  a  judicial  amendment  (Amendment  XII,  Sec- 
tion 2)  adopted  November  3,  1903.    Thorpe,  VI,  3240. 

Missouri 
"The  judges  of  the  Supreme  Court  shall  give  their  opinion  upon  im- 
portant questions  of  constitutional  law,  and  upon  solemn  occasions,  when 
required  by  the  governor,  the  senate,  or  the  house  of  representatives;  and 
all  such  opinions  shall  be  published  in  connection  with  the  reported  decisions 
of  said  court."  Article  VI,  Section  11,  of  the  Constitution  of  1865.  Poore, 
1149. 


APPENDIX  I  259 

Florida 

"The  governor  may  at  any  time  require  the  opinion  of  the  justices 
of  the  Supreme  Court  as  to  the  interpretation  of  any  portion  of  this  con- 
stitution, or  upon  any  point  of  law,  and  the  Supreme  Court  shall  render 
such  opinion  in  writing."  Article  VI,  Section  16,  of  the  Constitution  of 
1868.    Poore,  352. 

"The  governor  may  at  any  time  require  the  opinion  of  the  justices  of 
the  Supreme  Court  as  to  the  interpretation  of  any  portion  of  this  constitu- 
tion upon  any  question  affecting  his  executive  powers  and  duties,  and  the 
justices  shall  render  such  opinion  in  writing."  Article  VI,  Section  16, 
as  changed  by  Amendment  XI,  of  1875.  Poore,  368.  In  this  form  it  was 
repeated  as  Article  IV,  Section  13,  of  the  Constitution  of  1885.  Thorpe, 
n,  740. 

Colorado 

"The  Supreme  Coiut  shall  give  its  opinion  upon  important  questions 
upon  solemn  occasions  when  required  by  the  governor,  the  senate,  or  the 
house  of  representatives;  and  all  such  opinions  shall  be  published  in  connec- 
tion with  the  reported  decisions  of  said  court. "  This  was  an  Amendment 
to  Article  VI,  Section  3,  adopted  on  November  2,  1886.  Vide  L.  1887, 
p.  483.  Mills  Ann.  St.  1912,  I,  c.  132.  (This  is  carelessly  omitted  from 
Thorpe's  Constitutions.) 

South  Dakota 

"The  governor  shall  have  authority  to  require  the  opinions  of  the 
judges  of  the  Supreme  Court  upon  important  questions  of  law  involved  in 
the  exercise  of  his  executive  powers  and  upon  solenm  occasions."  Article 
V,  Section  13,  of  the  Constitution  of  1889.    Thorpe  VI,  3366. 


APPENDIX  II 

The  Advisory  Opinion  Statutes  of  the  Dominion  of  Canada  and  the 
Canadian  Provinces 

Dominion  of  Canada 

"The  Governor  in  Council  may  refer  to  the  Supreme  Court  for  hearing 
or  consideration,  any  matter  which  he  thinks  fit  to  refer;  and  the  court 
shall  thereupon  hear  and  consider  the  same  and  certify  their  opinion  thereon 
to  the  Governor  in  Coimcil;  provided  that  any  judge  or  judges  of  the  court 
who  differ  from  the  opinion  of  the  majority  may,  in  like  manner,  certify 
his  or  their  opinion  or  opinions  to  the  Governor  in  Council."  This  is  the 
provision  of  the  Supreme  Court  Act  (38  Vic.  c.  11)  as  incorporated  in  the 
Revised  Statutes  of  1886  (R.  S.  C.  1886,  c.  135,  Section  37). 

"Important  questions  of  law  or  fact  touching  provincial  legislation, 
or  the  appellate  jurisdiction  as  to  educational  matters  vested  in  the  Governor 
in  Council  by  the  'British  North  America  Act,  1867,'  or  by  any  other  act 
or  law,  or  touching  the  constitutionality  of  any  legislation  of  the  Parliament 
of  Canada,  or  touching  any  other  matter  with  reference  to  which  he  sees 
fit  to  exercise  this  power,  may  be  referred,  by  the  Governor  in  Council, 
to  the  Supreme  Court  for  hearing  and  consideration;  and  the  court  shall 
thereupon  hear  and  consider  the  same. 

2.  The  court  shall  certify  to  the  Governor  in  Council,  for  his  informa- 
tion, its  opinion  on  questions  so  referred,  with  the  reasons  therefor,  which 
shall  be  given  in  like  manner  as  in  the  case  of  a  judgment  upon  an  appeal  to 
the  said  court,  and  any  judge  who  differs  from  the  opinion  of  the  majority 
shall,  in  like  manner,  certify  his  opinion  and  his  reasons. 

3.  In  case  any  such  question  relates  to  the  constitutional  vahdity  of 
any  Act  which  has  heretofore  been  or  shall  hereafter  be  passed  by  the  legis- 
lature of  any  province,  or  any  provision  in  any  such  Act,  or  in  case,  for  any 
reason,  the  government  of  any  province  has  any  special  interest  in  any 
such  question,  the  Attorney  General  of  such  province  .  .  .  shall  be  notified 
of  the  hearing,  in  order  that  he  may  be  heard  if  he  thinks  fit. 

4.  The  court  shall  have  power  to  direct  that  any  person  interested,  or 
where  there  is  a  class  of  persons  interested,  any  one  or  more  persons  as 
representatives  of  such  class,  shall  be  notified  of  the  hearing  upon  any 
reference  under  this  section,  and  such  persons  shall  be  entitled  to  be  heard 
thereon. 


APPENDIX  n  261 

5.  The  court  may,  in  its  discretion,  request  any  counsel  to  argue  the 
as  to  any  interest  which  is  affected  and  as  to  which  counsel  does  not 

appear,  and  the  reasonable  expenses  thereby  occasioned  may  be  paid  by 
the  Minister  of  Finance  .  .  .  out  of  any  moneys  appropriated  by  Parlia- 
ment for  expenses  of  litigation. 

6.  The  opinion  of  the  court  upon  any  such  reference,  although  ad- 
visory only,  shall,  for  all  purposes  of  appeal  to  Her  Majesty  in  Council,  be 
treated  as  a  final  judgment  of  the  said  court  between  parties."  54-5  Vic, 
c.  25,  s.  4. 

"Important  questions  of  law  or  fact  touching  (a)  the  interpretation  of 
the  'British  North  America  Acts'  1867  to  1886;  or,  (b)  the  constitutionality  or 
interpretation  of  any  Dominion  or  provincial  legislation;  or,  (c)  the  appellate 
jurisdiction  as  to  educational  matters,  by  the  'British  North  America  Act, 
1867,'  or  by  any  other  Act  or  law  vested  in  the  Governor  in  Council;  or, 
(d)  the  powers  of  the  Parliament  of  Canada,  or  of  the  legislatures  of  the 
provinces,  or  the  respective  governments  thereof,  whether  or  not  the  parti- 
cular power  in  question  has  been  or  is  proposed  to  be  executed;  or,  (e)  any 
other  matter,  whether  or  not  in  the  opinion  of  the  court  ejusdem  generis 
with  the  foregoing  envmierations,  with  reference  to  which  the  Governor  in 
Council  sees  fit  to  submit  any  such  question;  may  be  referred  by  the  Gover- 
nor in  Council  to  the  Supreme  Court  for  hearing  and  consideration;  and 
any  question  touching  any  of  the  matters  aforesaid,  so  referred  by  the 
Governor  in  Council,  shall  be  conclusively  deemed  to  be  an  important 
question. 

2.  WTien  any  such  reference  is  made  to  the  court,  it  shaU  be  the  duty 
of  the  court  to  hear  and  consider  it,  and  to  answer  such  question  so  referred; 
and  the  court  shall  certify  to  the  Governor  in  Coimcil,  for  his  information, 
its  opinion  upon  each  such  question,  with  the  reasons  for  each  such  answer; 
and  such  opinion  shall  be  pronounced  in  like  manner  as  in  the  case  of  a 
judgment  upon  an  appeal  to  the  court;  and  any  judge  who  differs  from  the 
opinion  of  the  majority  shall  in  like  manner  certify  his  opinion  and  his 
reasons."  6  Edw.  VII,  c.  50,  mcorporated  as  Sec.  60  of  R.  S.  C.  1906, 
c.  139.    The  other  sections  are  essentially  identical  with  ss.  3-6  above. 

"The  court,  or  any  two  of  the  judges  thereof,  shall  examine  and  report 
upon  any  private  bill  or  petition  for  a  private  bill  presented  to  the  Senate  or 
House  of  Commons,  and  referred  to  the  court  imder  any  rules  or  orders 
made  by  the  Senate  or  House  of  Conunons. "  R.  S.  C.  1906,  c.  139,  Section 
61. 

Ontario 
An  Act  for  expediting  the  decision  of  Constitutional  and  other  provincial 
Questions.     (R.S.O.    1897,   c.  84) 


262  DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

"1.  The  Lieutenant-Governor  in  Council  may  refer  to  the  Court  of 
Appeal  or  to  the  High  Court  for  hearing  or  consideration  any  matter  which 
he  thinks  fit  to  refer,  and  the  Court  shall  thereupon  hear  or  consider  the 
same.    53  Vic.  c.  13,  s.  1. 

2.  The  Court  is  to  certify  to  the  Lietutenant-Governor  in  Council 
its  opinion  on  the  question  referred,  with  the  reasons  therefor  which  are 
to  be  given  in  like  manner  as  in  the  case  of  a  judgment  in  an  ordinary  action; 
and  any  Judge  who  differs  from  the  opinion  of  the  majority  may  in  like  man- 
ner certify  his  opinion  with  his  reasons  therefor  to  the  Lieutenant-Governor 
in   Council.    53   Vic.   c.    13,   s.  2. 

3.  In  case  the  matter  relates  to  the  constitutional  validity  of  any  Act 
which  has  heretofore  been  or  shall  hereafter  be  passed  by  the  Legislature 
of  this  Province,  or  of  some  provision  in  any  such  Act,  the  Attorney- 
General  of  Canada  shall  be  notified  of  the  hearing  in  order  that  he  may  be 
heard  if  he  sees  fit.    53  Vic.  c.  13,  s.  3. 

4.  The  Court  shall  have  power  to  direct  that  any  person  interested, 
or  where  there  is  a  class  of  persons  interested,  any  one  or  more  persons  as 
representatives  of  such  class,  shall  be  notified  of  the  hearing,  and  such 
persons  shall  be  entitled  to  be  heard.    53  Vic.  c.  13,  s.  4. 

5.  "Where  any  interest  affected  is  not  represented  by  coimsel,  the  Court 
may  in  its  discretion  request  some  coimsel  to  argue  the  case  in  such  interest, 
and  the  reasonable  expenses  thereof  shall  be  paid  out  of  the  Suitors'  Fee 
Fund  or  otherwise.    53  Vic.  c.  13,  s.  5. 

6.  The  opinion  of  the  Court  shall  be  deemed  a  judgment  of  the  Court, 
and  an  appeal  shall  lie  therefrom  as  in  the  case  of  a  judgment  in  an  action. 
53  Vic.  c.  13,  s.  6. 

7.  In  case  of  the  matter  being  appealed  from  the  High  Court  to  the 
Court  of  Appeal,  sections  2,  3,  4,  5  and  6  shall  apply  in  like  manner  as  if 
the  original  reference  had  been  to  the  Court  of  Appeal.  An  appeal  to 
Her  Majesty  in  Her  Privy  Council  from  a  judgment  of  any  Court  on  a 
reference  under  this  Act  shall  not  be  subject  to  the  restrictions  contained 
in  the  Revised  Statute  of  this  Province  respecting  appeals  to  Her  Majesty 
in  Her  Privy  Council.     (Rev.  Stat.  c.  48)    53  Vic.  c.  13,  s.  7. " 

Nova  Scotia 
Of  the  decision  of  constitutional  and  other  provincial  questions.     (R.  S. 
N.  S.  1900,  c.  166) 

"1.  The  Govemor-in-Council  may  refer  to  the  Supreme  Court  of  Nova 
Scotia,  for  hearing  or  consideration,  any  matter  which  he  thinks  fit  to  refer, 
and  the  court  shall  thereupon  hear  and  consider  the  same.  1890,  c.  9,  s.  1. 

2.  The  court  shall  certify  to  the  Govemor-in-Council  its  opinion  on 
the  matter  referred,  with  the  reasons  therefor,  which  are  to  be  given  in  like 


APPENDIX  n  263 

manner  as  in  the  case  of  a  judgment  in  an  ordinary  action;  and  any  judge 
who  dififers  from  the  opinion  of  the  majority  shall,  in  like  marmer,  certify 
his  opinion,  with  his  reasons  therefor,  to  the  Go vemor-in -Council.  1890, 
c.   9,   s.   2. 

3.  If  the  matter  relates  to  the  constitutional  vaUdity  of  any  Act  which 
has  heretofore  been,  or  hereafter  is  passed  by  the  legislature  of  this  province, 
or  of  any  provision  in  any  such  Act,  the  Attorney-General  of  Canada  shall 
be  notified  of  the  hearing,  in  order  that  he  may  be  heard  if  he  thinks  fit. 
1890,  c.  9,  s.  3. 

4.  The  court  shall  have  power  to  direct  that  any  person  interested,  or, 
where  there  is  a  class  of  persons  interested,  any  one  or  more  persons  as 
representatives  of  such  class,  shall  be  notified  of  the  hearing,  and  such 
persons  shall  be  entitled  to  be  heard.     1890,  c.  9,  s.  4. 

5.  Where  any  interest  affected  is  not  represented  by  counsel,  the  court 
may,  in  its  discretion,  request  coimsel  to  argue  the  case  in  such  interest, 
and  the  reasonable  expenses  thereby  occasioned  shall  be  paid  out  of  the  gen- 
eral revenues  of  the  province.     1890,  c.  9,  s.  5. 

6.  The  opinion  of  the  court  upon  any  such  reference,  although  advisory 
only,  shall,  for  all  purposes  of  app>eal  to  the  Supreme  Court  of  Canada,  or 
to  Her  Majesty-in-Coimcil,  be  treated  as  a  final  judgment  of  the  court 
between  parties.     1890,  c.  9,  s.  6." 

Manitoba 
"1.  The  Lieutenant  Governor  in  Council  may  refer  to  the  Court 
of  Queen's  Bench,  or  to  a  judge,  for  hearing  and  consideration,  any  matter 
which  he  thinks  fit  to  refer,  and  the  Court  of  Queen's  Bench  or  judge  shall 
thereupon  hear  and  consider  the  same.     1891,  c.  28,  s.  1. 

2.  The  court  or  judge  is  to  certify  to  the  Lieutenant  Governor  in  Coun- 
cil its  or  his  opinion  on  the  question  referred,  with  the  reasons  therefor, 
which  are  to  be  given  in  like  manner  as  in  the  case  of  a  judgment  in  an  ordi- 
nary action;  and  any  judge  who  differs  from  the  opinion  of  the  majority 
may,  in  like  manner,  certify  his  opinion,  with  his  reasons  therefor,  to  the 
Lieutenant  Governor  in  Council.     1891,  c.  28,  s.  2. 

3.  In  case  the  matter  relates  to  the  constitutional  validity  of  any  Act 
which  has  heretofore  been,  or  shall  hereafter  be,  passed  by  the  legislature 
of  this  province,  or  of  some  provision  in  any  such  Act,  the  Attorney  General 
of  Canada  shall  be  notified  of  the  hearing,  in  order  to  be  heard  if  he  sees 
fit.     1891,  c.  28,  s.  3. 

4.  The  court  or  judge  shall  have  power  to  direct  that  any  person  inter- 
ested, or  where  there  is  a  class  of  persons  interested,  one  or  more  persons  as 
representative  of  such  class,  shall  be  notified  of  the  hearing,  and  such  persons 
shall  be  entitled  to  be  heard.     1891,  c  28,  s.  4. 


264     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

5.  Where  any  interest  affected  is  not  represented  by  counsel,  the  court 
or  judge  may  in  its  or  his  discretion  request  some  counsel  to  argue  the  case 
in  such  interest,  and  the  reasonable  expenses  thereof  shall  be  paid  by  the 
Provincial  Treasurer.     1891,  c.  28,  s.  5. 

6.  The  opinion  of  the  court  or  judge  shall  be  deemed  a  judgment  of  the 
court,  and  an  appeal  shall  lie  therefrom  as  in  the  case  of  a  judgment  in  an 
action.     1891,  c.  28,  s.  6." 

Note:  These  provisions  were  originally  enacted  as  53  Vic.  c.  16,  ss.  1-6 

British  Columbia 
"11.  The  Lieutenant  Governor  in  Council  may  refer  to  the  Full  Court, 
or  to  a  judge,  for  hearing  and  consideration,  any  matter  which  he  thinks 
fit  to  refer,  and  the  Full  Court  or  judge  shall  thereupon  hear  and  consider 
the  same.     R.  S.  B.  C.  1897,  c.  56,  s.  98. 

12.  The  court  or  judge  is  to  certify  to  the  Lieutenant  Governor  in 
Coimcil  its  or  his  opinion  on  the  question  referred,  with  the  reasons  therefor, 
which  are  to  be  given  in  like  manner  as  in  the  case  of  a  judgment  in  an 
ordinary  action;  and  any  judge  who  differs  from  the  opinion  of  the  majority 
may,  in  like  manner,  certify  his  opinion,  with  his  reasons  therefor,  to  the 
Lieutenant  Governor  m  Council.    R.  S.  B.  C.  1897,  c.  56,  s.  99. 

13.  In  case  the  matter  relates  to  the  constitutional  validity  of  any  Act 
which  has  heretofore  been,  or  shall  hereafter  be,  passed  by  the  legislature 
of  this  province,  or  of  some  provision  in  any  such  Act,  the  Attorney  General 
of  Canada  shall  be  notified  of  the  hearing,  in  order  to  be  heard  if  he  sees 
fit.    R.  S.  B.  C.  1897,  c.  56,  s.  100. 

14.  The  court  or  judge  shall  have  power  to  direct  that  any  person 
interested,  or  where  there  is  a  class  of  persons  interested,  one  or  more  persons 
as  representative  of  such  class,  shall  be  notified  of  the  hearing,  and  such 
persons  shall  be  entitled  to  be  heard.     R.  S.  B.  C.  1897,  c.  56,  s.  101. 

15.  The  opinion  of  the  court  or  judge  shall  be  deemed  a  judgment  of 
the  court,  and  an  appeal  shall  lie  therefrom  as  in  the  case  of  a  judgment  in 
an  action.     R.  S.  B.  C.  1897,  c.  56,  s.  102. 

16.  The  reasons  given  by  the  court  or  members  thereof,  or  the  judge, 
for  any  judgment  under  this  Act  shall,  as  soon  as  practicable  thereafter, 
be  published  in  the  Brit.  Col.  Gazette.      R.  S.  B.  C.  1897,  c.  56,  s.  103." 

The  above  provisions  were  originally  enacted  as  L.  1891,  c.  5,  ss.  1-6. 
By  L.  1907,  c.  12,  ss.  4-6,  "Court  of  Appeal"  was  substituted  for  "Full 
Court"  or  "Court"  as  the  Supreme  Court  was  replaced  by  the  Court  of 
Appeal  by  L.  1907,  c.  10.  In  that  form  the  entire  act  was  reenacted  as 
R.  S.  B.  C.  1911,  c.  45. 


APPENDIX  n  265 

Quebec 
Questions  referred  to  the  Court  of  King's  Bench  by  the  Lieutenant-Governor 
in  Council.     (R.  S.  Q.  1909,  Title  III,  c.  3) 

"579.  The  Lieutenant-Governor  in  Council  may  refer  to  the  Court 
of  King's  Bench,  Appeal  side,  for  hearing  and  consideration,  any  question 
which  he  deems  expedient,  and  thereupon  the  court  shall  hear  and  consider 
the  same.    61  V.,  c.  11,  s.  1. 

580.  The  court  shall  send  to  the  Lieutenant-Governor  in  Council  for 
his  information  its  opinion  duly  certified  upon  the  questions  so  referred, 
giving  its  reasons  in  support  thereof,  in  like  manner  as  in  the  case  of  judg- 
ments rendered  upon  appeals  brought  before  the  said  court. 

Any  judge  who  differs  from  the  majority  shall,  in  like  manner,  give  his 
opinion  duly  certified  and  his  reasons  in  support  thereof.    61  V.,  c.  11,  s.  2. 

581.  The  court  may  order  that  any  person  interested,  or  if  there  is  a 
class  of  persons,  any  one  or  more  persons  as  representing  such  class,  be 
notified  of  the  hearing  upon  any  reference  to  the  court  imder  this  chapter; 
and  such  persons  are  entitled  to  be  heard.     61  V.,  c.  11,  s.  3. 

582.  The  opinion  of  the  court  upon  any  question  referred  to  it  under 
this  chapter  is  advisory  only  and  cannot  be  appealed  from.     61  V.,  c.  11,  s.  4. 

583.  The  majority  of  the  judges  of  the  Court  of  King's  Bench  may 
make  the  rules  of  practice  necessary  for  carrying  out  the  provisions  of  this 
chapter. 

The  chief-justice  of  the  Court  of  King's  Bench,  or  if  he  be  absent  or 
sick,  any  other  judge  of  that  court,  may  fix  any  day  or  days,  in  or  out  of 
term,  for  the  hearing,  consideration  and  decision  of  the  question  referred 
under  the  authority  of  this  chapter.    61  V.,  c.  11,  s.  5." 

Saskatchewan 
An  Act  respecting  the  Decision  of  Constitutional  and  other  Legal  Questions. 
(R.   S.   S.    1909,   c.   57) 

"1.  The  Lieutenant  Governor  in  Council  may  refer  to  the  supreme 
court  of  Saskatchewan  for  hearing  or  consideration  any  matter  which  he 
thinks  fit  to  refer  and  the  court  shall  thereupon  hear  or  consider  the  same. 
1901,  c.   11,  s.   1. 

2.  The  court  is  to  certify  to  the  Lieutenant  Governor  in  Coimdl  its 
opinion  on  the  question  referred  with  the  reasons  therefor  which  are  to  be 
given  in  like  manner  as  in  the  case  of  a  judgment  in  an  ordinary  action;  and 
any  judge  who  differs  from  the  opinion  of  the  majority  may  in  like  manner 
certify  his  opinion  with  his  reasons  therefor  to  the  Lieutenant  Governor  in 
Council.     1901,  c.  11,  s.  2. 

3.  In  case  the  matter  relates  to  the  constitutional  validity  of  any  Act 
which  has  heretofore  been  or  shall  hereafter  be  passed  by  the  Legislature 


266  DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

or  of  any  Ordinance  passed  by  the  Legislative  Assembly  of  the  North- West 
Territories  or  of  some  provision  in  any  such  Act  or  Ordinance  the  attorney- 
general  for  Canada  shall  be  notified  of  the  hearing  in  order  that  he  may  be 
heard  if  he  sees  fit.     1901,  c.  11,  s.  3. 

4.  The  court  shall  have  power  to  direct  that  any  person  interested 
or  where  there  is  a  class  of  persons  interested  any  one  or  more  persons  as 
representatives  of  such  class  shall  be  notified  of  the  hearing  and  such  persons 
shall  be  entitled  to  be  heard.     1901,  c.  11,  s.  4. 

5.  Where  any  interest  affected  is  not  represented  by  counsel  the  court 
may  in  its  discretion  request  coimsel  to  argue  the  case  in  such  interest  and 
reasonable  expenses  thereof  shall  be  paid  out  of  the  general  revenue  fund. 
1901,  c.  11,  s.  5. 

6.  The  opinion  of  the  court  shall  be  deemed  a  judgment  of  the  court 
and  an  appeal  shall  he  therefrom  as  in  the  case  of  a  judgment  in  an  action. 
1901,  c.  11,  s.  6." 

New  Brunswick 

"21.  The  Court  shall  have  jurisdiction  to  entertain  an  action  at  the 
instance  of  either  the  Attorney  General  for  the  Dominion,  or  the  Attorney 
General  of  this  Province,  for  a  declaration  as  to  the  validity  of  any  statute, 
or  any, provision  in  any  statute  of  this  legislature,  though  no  further  relief 
should  be  prayed  or  sought;  and  the  action  shall  be  deemed  sufficiently 
constituted  if  the  two  officers  aforesaid  are  parties  thereto.  A  judgment 
in  the  action  shall  be  appealable  like  other  judgments  of  the  said  Court. " 
Judicature  Act  of  1906  (6  Edw.  VII,  c.  37). 

This  was  reenacted  as  section  16  of  the  Judicature  Act  of  1909  (9  Edw. 

vn,  c.  5). 


APPENDIX  III 
Advisory  Opinion  Provisions  in  Central  and  South  American  States 

Colombia 
"If  a  bill  should  be  objected  to  on  the  ground  that  it  is  unconstitutional 
it  shall  be  excepted  from  the  provisions  of  Article  88.  (Permitting  repassage 
by  34  oi  both  houses).  In  this  case,  if  the  houses  insist,  the  bill  shall  pass 
to  the  Supreme  Court,  in  order  that  this  body,  within  six  days,  may  decide 
upon  its  constitutionality.  If  the  decision  of  the  court  should  be  favorable 
to  the  bill,  the  president  shall  give  it  his  approval.  If  the  decision  should 
be  imfavorable,  the  bill  shall  fail  and  be  removed  from  the  calendar." 
Article  90,  of  the  Constitution  of  1886.  Annals  of  Am.  Acad.,  Jan.  1893, 
Supplement.     See  also  Rodriguez,  American  Constitutions,  II,  337. 

Panama 
"If  the  executive  objects  to  a  bill  as  xmconstitutional,  and  the  assembly 
insists  on  its  passage,  it  shall  be  referred  to  the  Supreme  Court  of  Justice, 
which  shall  within  six  days  decide  upon  its  acceptibility.  An  afl&rmative 
answer  by  the  court  imposes  the  obligation  upon  the  executive  to  sanction 
and  promulgate  the  law.  If  it  is  negative,  the  project  shall  be  placed  in 
the  archives."  Article  105,  of  the  Constitution  of  1904.  Rodriguez, 
American  Constitutions,  I,  415. 

Provisions  Dealing  with  the  Exerctse  of  Other  Extra-Judicial 
Functions  by  the  Justices  in  Central  and  South  American  States 

Colombia 
"The  judges  of  the  Supreme  Court  shall  be  entitled  to  be  heard  in  the 
discussion  of  bills  relating  to  civil  matters  and  judicial  procedure. "    Article 
84,  of  the  Constitution  of  1886.    Annals  of  Am.  Acad.,  Jan.  1893,  Supple- 
ment.   See  also  Rodriguez,  American  Constitutions,  II,  336. 

Salvador 
"Bills  not  introduced  by  the  Supreme  Court  of  justice,  dealing  with 
matters  tending  to  reform  or  repeal  any  provision  contained  in  the  codes 
of  the  Republic,  shall  not  be  discussed  without  hearing  the  opinion  of  the 
said  court,  and  this  opinion  shall  be  given  either  during  the  same  session 
of  the  assembly  or  in  the  following  year,  as  the  importance,  urgency  or 


268     DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

length  of  the  bill  may  demand.  This  provision  is  not  applicable  to  laws  of 
political,  economic  or  executive  order. "  Article  79,  of  the  Constitution  of 
1886.     Rodriguez,  American  Constitutions,  I,  278. 

Honduras 

"Whenever  a  bill  not  originally  emanating  from  the  Supreme  Court 
has  for  its  object  the  reform  or  repeal  of  any  provision  in  the  codes  of  the 
Republic  or  of  any  law  relating  to  the  administration  of  justice,  the  opinion 
of  that  Court  shall  be  requested,  before  entering  into  its  discussion.  The 
court  shall  give  its  opinion  within  the  time  which  Congress  may  fix. "  Arti- 
cle 83,  of  the  Constitution  of  1904.  Rodriguez,  American  Constitutions, 
I,  375. 

Nicaragim 

"No  bill  having  for  its  object  the  amendment  or  repeal  of  any  pro- 
vision contained  in  the  Civil,  Penal,  Commercial,  Mining,  or  Procedure 
Codes  of  the  Republic,  not  originating  in  the  Supreme  Court  of  justice, 
shall  be  discussed  without  first  hearing  the  opinion  of  said  court,  said  opinion 
to  be  given  according  to  the  importance,  urgency,  or  magnitude  of  the  re- 
form, either  during  the  same  session  of  the  assembly  or  in  the  next. "  Article 
71,  of  the  Constitution  of  1905.    Rodriguez,  American  Constitutions,  I,  313. 


APPENDIX  IV 

Cases  Cited  in  the  Text 

It  has  seemed  better  to  list  the  cases  in  chronological 
order  in  each  state  rather  than  to  attempt  an  alphabetical 
arrangement  where  the  names  of  so  many  cases  are  identical 
or  at  least  very  similar.  The  conventional  name  Opinion  of 
the  Justices  is  supplied  for  some  cases  which  bear  no  name 
in   the   reports. 


England 


Scire  facias 


Commission  Case 
Northumberland's  Case 


Earl  of  Arundel's  Case 
Thorp's  Case 

Duke  of  York's  Case 

Stafford's  Case 

Customs'  Case 
Peacham's  Case 

Owen's  Case 
Somerset's  Case 
Commendams  Case 


Y.  B.  12  &  13 
Edw.  Ill,  Intro, 
ci-cv. 

Fortescue,  392 
Rot.  Pari.  5 
Hen.  IV,  Nos. 
11  &12 
Rot.  Pari.  27 
Hen.  VI,  No.  18 
13  Co.  Rep.  63; 
Rot.  Pari.  31 
Hen.   VI,    Nos. 
25,  26,  27  &  28 
Rot.  Pari.  39 
Hen.  VI,  No. 
12;   Fortescue, 
384 

Rot.  Pari.  1 
Hen.  VII,  Nos. 
25  &  26;  For- 
tescue, 389 
Hallam,  Const'l 
Hist.  I,  p.  340  n 
Bacon's  Works 
IV,  pp.  593, 596, 
601;  2  How.  St. 
Tr.  871 

Bacon's  Works 
IV,  pp.  321,  600 
Bacon's  Works 
IV,  pp.  616-25 
Bacon's  Works 
IV,  pp.  631,  636 


Page 

1340 

3 

1388 
1403 

8,223 
20,  223 

1449 

4,20 

1453 

20 

1460 

21,  22,  223 

1485 

9,16 

1614 

26 

1614 

10,  16,  223 

1614 

12 

1615 

12 

1616 

9 

270  DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 


England 

Page 

Stroud,  Long  et  al. 

3  How.  St.  Tr. 
235 

1629 

13 

Beckman  v.  Maplesden 

Bridg.  60 

1662 

14 

Paty's  Case,  or  The 

14  East  92  n; 

1704 

4,    22,    149, 

Aylesbury  Case,  or 

14  How.  St.  Tr. 

223 

Ashby  and  White 

695 

Whiston's  Case 

Burnet's  Own 
Times,  p.  867 

1711 

14,  223 

Prince  of  Wales'  Case 

Fortescue,  401; 
15  How.  St.  Tr. 

1717 

8,  149 

\ 

1195 

Schism  Act  Case 

Fortescue,  385 

1718 

26,27 

Fenwick's  Case 

Fortescue,  385 

8 

Warships  Case 

Fortescue,  388 

1721 

27 

Ferrer's  Case 

Foster's  Cr. 
Law,  p.  138 

1760 

22 

Sackville's  Case 

2  Eden  371 

1760 

15,  16,  32, 
149 

Head  v.  Head 

1  T.  &  R.  138 

1823 

24 

In  re  London  &  Westmin- 

2 CI.  &  Fin. 

1834 

28,29 

ster  Bank 

191 

McNaghten's  Case 

10  CI.  &  Fin. 

1843 

28,    29,    30, 

200 

165,  201, 214 

Bright  V.  Hutton 

3  H.  of  L.  341 

1851 

24 

In  re  Schlumberger 

9  Mo.  P.  C.  1 

1853 

17,  166 

Ex  parte  Co.  Council  of 

(1891)  1  Q.  B. 

1891 

18 

Kent  &  Council  of  Do- 

725 

ver 
Allen  V.  Flood 

(1898)  A.  C.  1 

1898 

23 

Trial  of  Earl  Russell 

(1901)  A.  C.  446 

1901 

23 

United  States 

Haybum's  Case 

2  Dall.  409 

1792 

60,  61,  195, 
250 

U.  S.  V.  Yale  Todd 

13  How.  52n 

1794 

60,  61,  250 

Marbury  v.  Madison 

1  Cr.  137 

1803 

162 

Gibbons  v.  Ogden 

9  Wheat.  1 

1824 

198 

Osbom  V.  Bank  of  U.  S. 

9  Wheat.  319 

1824 

62 

Wayman  v.  Southard 

10  Wheat.  46 

168 

U.  S.  V.  Ferreira 

13  How.  40 

1851 

60,61 

Gordon  v.  U.  S. 

2  Wall.  561; 

1865 

61,    62,    63, 

117  U.  S.  697 

249 

U.  S.  V.  Klein 

13  Wall.  144 

1872 

63 

U.  S.  V.  Jones 

119  U.  S.  477 

1886 

63 

Chicago,  etc.  R.  R.  Co.  v. 

143  U.  S.  339 

1891 

62 

Wellman 

In  re  Sanborn 

148  U.  S.  222 

1892 

64 

APPENDIX  IV 


271 


Colorado 

Page 

Wheeler  v.  No.  Colo.  Irr. 

9  Colo.  248 

203, 204,  205 

Co. 

In  the  m.  of  the  Consti- 

9 Colo.  641 

Jan.  10,  1887 

108 

tutionality  of  S.  Rule 

No.—. 

In  the  m.  of  the  Consti- 

9 Colo.  623 

Jan.  17,  1887 

97,  141,  156 

tutionality  of  SB.  No. 
76 
In  the  m.  of  the  Consti- 

9  Colo.  623 

Jan.  29,  1887 

97,  111,  155, 

tutionaUty  of  HB.  No. 
18 
In  the  m.  of  the  Consti- 

159, 216 

9  Colo.  639 

Feb.  5,  1887 

97,  118,  156, 

tutionality  of  S.9  of 

157 

HB.  No.  122 

In  the  m.  of  Sen.  Resolu- 

9 Colo.  626 

Feb.  10,  1887 

123,  211 

tions,  etc. 

In  the  m.  of  the  Con?ti- 

9  Colo.  625 

Feb.  11,  1887 

140,  155 

tutionality  of  HB.  No. 

158 

In  the  m.  of  HB.  No.  166 

9  Colo.  628 

Feb.  14,  1887 

125, 128, 156 

In  them,  of  "A  Bill  for 

9  Colo.  629 

Feb.  15,  1887 

124,  156 

an  Act  to  provide  for 

the    amicable    adjust- 

ment of  grievances  and 

disputes  that  may  arise 

between  employers  and 

employees,  and  to  au- 

thorize the  creation  of 

a    Board    of    Arbitra- 

tion." 

In  the  m.  of  House  Reso- 

9 Colo.  622 

Feb.  23,  1887 

114,  211 

lution- (re)-Taxation  of 

patented  mining  lands 

In  the  m.  of  HB.  No.  231 

9  Colo.  624 

Feb.  24,  1887 

97,  107,1118, 
155        IM 

In  the  m.  of  Sen.  Resolu- 

9 Colo.  620 

Mar.  7,  1887 

53,  127,  174, 

tion  on  the  Subject  of 

181,     185, 

Irrigation 

188,    206, 
210,  212, 220 

In  the  m.  of  HB.  No.  38 

9  Colo.  631 

Mar.  7,  1887 

98,  155      H 

In  the  m.  of  the  Consti- 

9 Colo.  635 

Mar.  11,  1887 

97,  113,1156, 

tutionality  of  HB.  No. 

217 

270  &  SBB.  Nos.  69  & 

106 

In  re  Sen.  Resolution  Re- 

9 Colo.  630 

Mar.  18,  1887 

107,  108, 

lating  to  the  Recall  of 

211,  212 

Bills    Transmitted    to 

His      Excellency     the 

Governor  for  Approval 

272      DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 


Colorado 

Page 

In  the  m.  of  Sen.  Resolu- 

9 Colo.  632 

Apr.  1,  1887 

107,  155 

tion  of  Mar.  31, 1887,  re 

Construction  of  Const. 

IV  11  in  rel.  to  SB.  No. 

• 

56 

In  the  m.  of  HB.  No.  203 

9  Colo.  631 

Apr.  2,  1887 

128, 144. 155 

Veto  Power — Special  Ses- 

9 Colo.  642 

(Apr.  4,  1887) 

100,     103, 

sion     of     Gen'l    Ass'y 

211,213 

In  re  Election  of  District 

11  Colo.  373 

1888 

140,     153, 

Judges 

199,  230 

In  the  m.  of  HR.  re  Con- 

12 Colo.  186 

Jan.  18,  1889 

101,155,212 

stitutionality  of  Legis- 

lature       Redistricting 

State   for  Legislative 

Purposes 

In  re  SR.yrel.  to  Constitu- 

12 Colo.  187 

Jan.  28,  1889 

101,155,212 

tionality    of    Proposed 

Reapportionment    Bill 

In  re  SB.  Providing  for  a 

12  Colo.  188 

Jan.  29,  1889 

118,     131, 

Board  of  Public  Works 

151,     155, 

in  the  City  of  Denver 

216,  222 

In  re  SR.  Relating  to  Ap- 

12 Colo.  287 

Feb.  18,  1889 

98,  115 

propriation  of  Moneys 

Belonging   to   Internal 

Improvement  Fund 

In  re  SR.  Relating  to  In- 

12  Colo.  285 

Feb.  20,  1889 

115,  156, 

t  e  r  n  a  1    Improvement 

175,  211 

Fund  Provided  for  by 

Act  of  Cong,  of  Sept. 

4,  1841 

In  re  HR.  Relating  to 

12  Colo.  289 

Mar.  2,  1889 

98,  155 

HB.  No.  116 

In  re  SR.  Relating  to  SB. 

12  Colo.  290 

Mar.  2,  1889 

98,  155 

No.  1 

In  re  HB.  No.  238 

12  Colo.  337 

Mar.  5,  1889 

97,  155 

In  re  SR.  Relating  to  SB. 

12  Colo.  339 

Mar.  5,  1889 

107,  199 

No.  45,  as  passed  and 

approved  Feb.  20,  1889 

In  re  HR.  Relating  to 

12  Colo.  359 

Mar.  12,  1889 

98,  107,  141, 

HB.  No.  218  Concern- 

199 

Terms  of  District  Court 

of  El  Paso  Co. 

In  re  SR.  Relating  to  SB. 

12  Colo.  340 

Mar.  16,  1889 

98,  140,  155 

No.  31 

In  re  HR.  Relating  to 

12  Colo.  395 

Mar.  23,  1889 

98,  118,  130, 

HB.  No.  349 

156 

In  re  Question  Pro- 

12 Colo.  399 

1889 

132,  199 

pounded  by  the  Gover- 

nor 

APPENDIX  IV 

Z/6 

Colorado 

1 

Page 

District  Attorneys.       In 

12  Colo.  466 

1889 

46,    49,    50, 

the  m.  of  the  Constitu- 

51, 98,  107, 

tionality  of  SB.  No.  65 

124,     148, 
175,     176, 
185,     188, 
189,     194, 
197,     199, 
200,    203, 
205,    206, 
208,    211, 
213,    217, 
219,221,228 

In  re  Appropriations  by 

13  Colo.  316 

1889 

115,     116, 

Gen'l  Ass'y 

117,     130, 
148,     157, 
175,     186, 
194,    200, 
206,  217 

In  re  Funding  of  Co.  In- 

15 Colo.  421 

1890 

146, 148,  205 

debtedness 

In  re  Speakership  of  the 

15  Colo.  520 

1891 

106,     148, 

House  of   Representa- 

175, 205 

tives 

In  re  Constitutionality  of 

15  Colo.  578 

1891 

141, 155, 156 

a  Court  of  Appeals 

In  re  Constitutionality  of 

15  Colo.  601 

Mar. 

5,  1891 

155,  217 

SB.  No.  69 

In  re  HR.  No.  25 

15  Colo.  602 

Mar. 

11,  1891 

98,  107,  118, 
131,     138, 
175,     193, 
199,  212 

In  re  HB.  No.  165 

15  Colo.  593, 
595 

Mar. 

12,  1891 

98,  118,  156, 
159, 192,  216 

In  re  House  Resolutions 

15  Colo.  598 

Mar. 

13,  1891 

113,     122, 

Concerning  Street  Im- 

156,    186, 

provements 

188, 189, 192 

In  re  HB.  No.  10,  Con- 

15 Colo.  600 

Mar. 

30,  1891 

121, 156, 192 

cerning  the  Weighing  ol 

Coal 

People  V.  Richmond  et  al 

16  Colo.  274 

1891 

235 

In  re  Gen'l  Appropriation 

16  Colo.  539 

1891 

107, 130, 199 

Bill 

Henderson  v.  People  ex 

17  Colo.  587 

1892 

235 

rel.  Wingate 

In  re  Continuing  Appro- 

18 Colo.  192 

Feb. 

6,  1893 

117,     148, 

priations 

181,  200 

In  re  Loan  of  School  Fund 

18  Colo.  195 

Feb. 

10,  1893 

118,     123, 
148,156,216 

274   DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 


Colorado 

Page 

In  re  Board  of  Capitol 

18  Colo.  220 

1893 

128,  200 

Commissioners 

In  re  Kindergarten 

Schools 
In  re  Compensation  of 

18  Colo.  234 

Feb.  17, 

1893 

123,155,217 

18  Colo.  272 

Feb.  21, 

1893 

141,  156 

Co.  Judges 

In  re  Bounties 

18  Colo.  273 

Feb.  25, 

1893 

98,  114,  155 

In  re  Extension  of  Bound- 

18 Colo.  288 

Mar.  14 

1893 

98,  126,  156 

aries  of  the  City  of  Den- 

ver 
In  re  University  Fund 

18  Colo.  398 

Mar.  16 

1893 

119,     123, 
175,200,216 

In  re  Emergency  Clause 

18  Colo.  291 

Mar.  18 

1893 

107,  212 

In  re  Internal  Improve- 

18 Colo.  317 

Mar.  25 

1893 

115,155,216 

ments 

In  re  Leasing  of  State 

18  Colo.  359 

1893 

137,148,200 

Lands 

In  re  Certificates  of  In- 

18 Colo.  566 

1893 

130,  200 

debtedness 

In  re  Priority  of  Legisla- 

19  Colo.  58 

1893 

52,  117,  119, 

lative  Appropriations 

131,     148, 
181,     186, 
194,  222,  229 

In  re  Canal  Certificates 

19  Colo.  63 

118,     137, 
148,  200,  217 

Mayor,  etc.  v.  Shattuck 

19  Colo.  104 

235 

In  re  Governor's  Procla- 

19 Colo.  333 

Jan.  24, 

1894 

108, 148, 155 

mation 

In  re  Amendments  of  Leg- 

19 Colo.  356 

Feb.  27, 

1894 

98,  107,  148, 

islative  Bills 

155 

In  re  Penitentiary  Com- 

19 Colo.  409 

1894 

136,     148, 

missioners 

175,     186, 
191, 194, 199 

In  re  Fire  and  Excise 

19  Colo.  482 

1894 

52,  133,  148, 

■  Commissioners 

158,     187, 
189,217,229 

People  V.  Martin  &  Peo- 

19 Colo.  565 

1894 

158,     187, 

ple  V.  Orr 

188,     192, 
218,  229,  235 

People  V.  State  Board  of 

20  Colo.  220 

235 

Equalization 

People  V.  McClees 

20  Colo.  403 

230 

City  of  Denver  v.  Coule- 

20  Colo.  471 

235 

han 

In   re  Appointments  by 

21  Colo.  14 

129,     186, 

the  Governor  of  Fire, 

188, 193,  200 

Police  and  Excise  Com- 

missioners of  the  City 

of  Denver 

APPENDIX  IV 


275 


Colorado 


In  re  HB.  No.  203 


In  re  HB.  No.  107 

In  re  Constitutionality  of 

SB.  No.  293 
In  re  a  Bill  Providing  that 

Eight  Hours  Shall  Con 

stitute  a  Day's  Labor 
In  re  Constitutionality  of 

an  Act,  etc. 
In  re  Relief  Bills 
In  re  Constitutionality  of 

Substitute  for  SB.  No 

83 
People  ex  rel.  v.  LeFevre 
In  re  Contracting  of  State 

Debt  by  Loan 
In  re  Casual  Deficiency 

Parks  V.  Soldiers'  and 
Sailors'  Home 

People  ex  rel.  v.  District 
Attorney  of  Arapahoe 
Co. 

In  re  Constitutionality  of 
SB.  No.  196 

In  re  Inheritance  Tax, 
HB.  No.  122 

In  re  Bill — to  Abolish  the 
use  of  Scrip  in  Payment 
for  Labor— HB.  No. 
147 

In  re  Consolidation  of 
School    Districts — SB. 
No.  23 

In  re  Internal  Improve- 
ment Fund 

In  re  State  Board  of 
Equalization 

In  re  Assessment  of  Pro- 
perty by  the  State 
Board  of  Equalization 

In  re  Annexation  and 
ConsoUdation  of  School 
Districts,  SB.  No.  9 

In  re  HB.  No.  99,  to  Se- 
cure to  Laborers  Pay- 
ment of  Wages  in  Law- 
ful Money  of  the  U.  S. 


21  Colo.  27 


21  Colo.  32 
21  Colo.  38 

21  Colo.  29 


21  Colo.  46 

21  Colo.  62 
21  Colo.  69 


21  Colo.  218 
21  Colo.  399 

21  Colo.  403 

22  Colo.  86 

23  Colo.  150 

23  Colo.  508 
23  Colo.  492 
23  Colo.  504 


23  Colo.  499 

24  Colo.  247 

24  Colo.  446 

25  Colo.  296 

26  Colo.  136 
26  Colo.  140 


Mar.  1,  1895 


Mar.  1,  1895 
Mar.  1,  1895 

Mar.  8,  1895 


Mar.  11,  1895 

1895 

Mar.  28,  1895 


Mar.  11,  1897 
Mar.  12,  1897 
Mar.  27,  1897 

Apr.  2,  1897 

1897 
1897 


Feb.  20,  1899 


Feb.  20,  1899 


Page 


98,  99,  124, 

155,  156, 
157,  217 

98,  127,  216 
98,  126,  148, 
156, 157,  218 
98,  124,  155, 

156,  157, 
159,211,216 
98,  108,  156, 
200 

114,  219 
118,  155 


229,  235 
130,  199 

118,  199, 
217,219,220 
116,  207, 
230,235,256 
235 


115,193,200 

98,  110,  155 

124,  211, 
212,216,220 


98,  156,  157, 
212 

115 

130,  148, 
186,  188 
113,  119, 

131,  181, 
186, 188, 189 

97,  123,  156, 
157,  191] 

98,  124,  186, 
188,  191, 
205,  220 


276      DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 


Colorado 


In  re  SB.  No.  142,  to  Reg- 
ulate Jury  Trials  in 
Civil  Cases 

In  re  HB.  No.  495,  to 
Amend  the  Constitu- 
of  the  State  of  Colorado 

In  re  HB.  No.  250,  to 
Create  a  State  Board  of 
Assessors 

In  re  AppUcation  of  Mor 
gan  for  Writ  of  Habeas 
Corpus 

C.  F.  &  I.  Co.  V.  State 
Board  of  Land  Com- 
missioners 

In  re  Leasing  of  State 
Lands 

Stuart  V.  Nance 

In  re  SB.  No.  27,  to  Regu- 
late Payment  of  Wages 

In  re  SR.  No.  7,  to  Repeal 
Constitutional  Amend- 
ments 

People  ex  rel.  v.  Sours 

Denver  v.  Londoner 

In  re  SR.  No.  10,  Con- 
cerning Governorship 
Contest 


City  of  Denver  v.  Iliff 
In  re  SB.  No.  416 


In  re  HR.  No.  10 


Questions  Propounded  by 
Governor  in  re  Pro- 
posed Amendments  to 
the  Constitution  and 
Initiated  and  Referred 
Measures 

In  re  Interrogatories  of 
the  Senate 


26  Colo.  167 
26  Colo.  182 
26  Colo.  234 
26  Colo.  415 


14  Colo.  App. 
84 

27  Colo.  99 

28  Colo.  194 

28  Colo.  359 

29  Colo.  350 


31  Colo.  369 
33  Colo.  104 
33  Colo.  307 


38  Colo.  357 
45  Colo.  394 


50  Colo.  71 


50  Colo.  84 


54  Colo.  166 


Mar.  7,  1899 

1899 

1899 

1899 

1899 

1901 

Feb.  4,  1902 

Mar.  13,  1905 

Apr.  2,  1909 
Mar.  6,  1911 
1911 

Jan.  24,  1913 


Page 


98,  141,  186, 
189 

98,  127,  146, 
211,212 

107,  217 


155,     157, 
230,  235 


236 


138,     186, 

188,  200 

235 

98,  124,  186, 

191,  205 

127,     146, 

211,212,216 


235 
235 
106, 
129, 
189, 


126, 
152, 
190, 


191,     200, 

205, 212 

235 

107,     109, 

207,    211, 

212,219,220 

98,  108,  145, 

148,     156, 

191,  222 

191 


106,  148, 

151,  152, 

160,  175, 

186,  188, 

189,  191, 

205,  213, 

222,  231 


APPENDIX  IV 


277 


Colorado 

Page 

In  re  SR.  No.  4 

In  re  SR.  No.  9 

In  re  Questions  of  the 

Governor 
In  re  Questions  by  the 

Governor 
In   re  Interrogatories  of 

the  House 

54  Colo.  262 

54  Colo.  429 

55  Colo.  17 

55  Colo.  105 
162  Pac.  1144 

Feb.  28,  1913 
Mar.  26,  1913 

Jan.  24,  1917 

98,  108,  155, 
188,    200, 
211,  250 
107, 140, 155 
117,     130, 
148,  199 
138,  200 

117,200,211 

Connecticut 

Opin.  of  the  Judges  of  the 

Supreme  Court 
Opin.  of  the  Judges  of  the 

Supreme  Court 
Reply  of  the  Judges  of  the 

Supreme  Court  to  the 

Gen'l  Ass'y 

30  Conn.  591 

32  Conn.  565 

33  Conn.  586 

1862 
1865 
1867 

71,  143,  180, 
201 

71,  180 

72,  78,  111, 
180,     187, 
224,  250 

Florida 

In  the  m.  of  the  Execu- 
tive Communication  of 
the  14th  Oct.  1868 

In  the  m.  of  the  Execu- 
tive Communication  of 
the  9th  of  Nov.  1868 

In  the  matter  of  the  Exe- 
cutive Communication 
of  the  28th  Jan.  1869 

In  the  m.  of  the  Execu- 
tive Communication  of 
Jan.  29th,  1869 

In  the  m.  of  the  Execu- 
tive Communication  of 
June  2nd,  1870 

In  the  m.  of  the  Execu- 
tive Communication  of 
Feb.  6th,  1871 

In  the  m.  of  the  Execu- 
tive Communication  of 
Feb.  1st,  1872 

In  the  m.  of  the  Execu- 
tive Communication  of 
Feb.  19th,  1872 

In  the  m.  of  the  Execu- 
tive Communication  of 
Feb.  29th,  1872 

12  Fla.  651 
12  Fla.  653 

12  Fla.  686 

12  Fla.  689 

13  Fla.  687 

13  Fla.  699 

14  Fla.  277 
14  Fla.  283 
14  Fla.  285 

Oct.  19,  1868 
Nov.  24,  1868 

Jan.  29,  1869 

June  6,  1870 
Feb.  11-25, 1871 
Feb.  5,  1872 
Feb.  19,  1872 
Mar.  1,  1872 

47,  128,  148 

47,  105,  128, 
139,     150, 
158,     174, 
179, 192, 194 
47,  148,  174, 
217,  224 

130, 150, 152 
146,  151 
114,  151 
128,  151 
108,117,148 
108,  148 

278   DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 


Florida 

Page 

In  the  m.  of  the  Execu- 

14 Fla.  289 

Apr.  29,  1872 

138,     150, 

tive  Communication  of 

151,     174, 

Apr.  17th,  1872 

179,  224 

In  the  m.  of  the  Execu- 

14 Fla.  318 

Sept.  27,  1872 

148 

tive  Communication  of 

Sept.  23rd,  1872 

In  the  m.  of  the  Execu- 

14 Fla.  320 

Jan.  24,  1873 

47,  125,  140, 

tive  Commimication  of 

148 

Jan.  16th,  1873 

In  the  m.  of  the  Execu- 

15 Fla.  735 

Oct.  28,  1875 

140,  149 

tive  Communication  of 

Oct.  5th,  1875 

In  the  m.  of  the  Execu- 

15 Fla.  739 

Nov.  9-15,  1875 

137,  151 

tive  Commimication  of 

Nov.  8th,  1875 

Advisory    Opinion.       In 

16  Fla.  841 

Jan.  19,  1877 

140,  149 

the  m.  of  the  Tenure  of 

OflBice  of  Judges  of  the 

Circuit  Courts 

In  re  Executive  Commim- 

23 Fla.  297 

May  10,  1887 

48,  54,  127, 

ication    Concerning 

149,     174, 

Powers  of  Legislature 

179 

Vacancies  in  Elective  Co. 

25  Fla.  426 

Jan.  16,  1889 

132 

Officers 

In  re  Advisory  Opin.  to 

31  Fla.  1 

Jan.  20,  1893 

137 

the  Governor 

In  re  Advisory  Opin,  to 

34  Fla.  500 

Jan.  5,  1895 

145 

the  Governor 

In  re  Opin.  of  Supreme 

39  Fla.  397 

Feb.  12,  1897 

136, 194, 197 

Court 

In  re  Advisory  Opin. 

43  Fla.  305 

Oct.  8,  1901 

48,  108,  130 

In  re  Advisory  Opin.  to 

45  Fla.  154 

May  5,  1903 

132,  140 

the  Governor 

In  re  Members  of  Legis- 

49 Fla.  269 

July  28,  1905 

132 

lature 

Advisory  Opin.  to  Gover- 

50 Fla.  169 

July  29,  1905 

117,  197 

nor 
In  re  Opin.  of  Justices 

54  Fla.  136 

July  17,  1907 

130, 148, 197 

Advisory  Opin.  to  the 

61  Fla.  1 

May  20,  1911 

138,  148 

Governor 

In  re  Advisory  Opin.  to 

62  Fla. 7 

June  22,  1911 

135,  150 

Governor 

In  re  Opin.  of  Judges 

62  Fla.  4 

July  17,  1911 

131,  197 

In  re  Opin.  of  Judges 

62  Fla.  1 

Jan.  8,  1912 

132 

In  re  Advisory  Opin.  to 

64  Fla.  1 

Sept.  24,  1912 

131, 145, 197 

Governor 

In  re  Advisory  Opin.  to 

64  Fla.  16 

Sept.  26,  1912 

132 

the  Governor 

In  re  Advisory  Opin.  to 

64  Fla.  21 

Sept.  28,  1912 

135 

the  Governor 

APPENDIX  IV 


279 


Florida 

Page 

In  re  Advisory  Opin.  to 
Governor 

In  re  Advisory  Opin.  to 
the  Governor 

In  re  Opin.  of  Justices 

Opin.  of  the  Justices 

In  re  Opin.  of  the  Jus- 
tices 

In  re  Opin.s  of  the  Jus- 
tices 

In  re  Opin.  of  the  Jus- 
tices.    In  re  Circuit 
Judges 

64  Fla.  168 

65  Fla.  434 

67  Fla.  423 

67  Fla.  489 

68  Fla.  560 

69  Fla.  632    • 
69  Fla.  653 

Dec.  14,  1912 

May  14,  1913 

Apr.  30,  1914 
May  20,  1914 
Dec.  17,  1914 

May  21,  1915 

June  2,  1915 

133 

131 

132, 140, 141 
133,  140 
137, 140, 197 

133,     141, 
150, 197, 224 
133,     140, 
141,  197 

Illinois 

W 

People  ex  rel.  v.  Bissell 

19  111.  229 

1857 

70,  249 

Iowa 

Morrison  v.  Springer 

15  la.  304 

72 

Kentucky 

Opin.  of  the  Judges  of  the 
Court  of  Appeals 

In  re  Board  of  Sinking 
Fund  Commissioners 

79  Ky.  621 
32  S.  W.  414 

1881 
1895 

73,  132,  180 

73,  139,  177, 
180,  191 

Maine 

Opin.  of  the  Justices  , 
Opin.  of  the  Justices 
Opin.  of  the  Justices 
Opin.  of  the  Justices 
Opin.  of  the  Justices 
Opin.  of  the  Justices 

Opin.  of  the  Justices 

Opin.  of  the  Justices 
Opin.  6f  the  Justices 

Opin.  of  the  Justices 
Opin.  of  the  Justices 
Opin.  of  the  Justices 
Opin.  of  the  Justices 

Opin.s  of  the  Justices" 
of  the  S.  J.  Court  ^ 

3  Me.  477 
3  Me.  481 

2  Me.  439 

3  Me.  484 
3  Me.  487 
6  Me.  486 

6  Me.  506 

6  Me.  514 

7  Me.  483 

7  Me.  492 
7  Me.  497 
7  Me.  502 
16  Me.  479 

18  Me.  458 

Mar.  6,  1821 
Feb.  15,  1822 
Sept.  18,  1822 
Feb.  18,  1825 
(Feb.  26, 1825) 
(Jan.  11,  1826) 

Jan.   30-Feb. 
4, 1830 

Feb.  4-10,  1830 
Feb.  15,  1830 

(Jan.  26,  1831) 
June,  1831 
Sept.,  1831 
(Feb.  11,  1840) 

(Feb.  4,  1842) 

41,100 
41,  128 
41,  128,  219 
140, 150, 151 
152 

101,  143, 
150,     151, 
152,  159 

129. 150. 151 

102. 104. 152 

102,  103, 
104,  136 
142,  143 
142,  143 
130 

126,     154, 
206,  219 
100,     101, 
102,     110, 
150,  217 

280      DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNAIENT 


Maine 

Page 

Opin.s  of  the  Justices  of 

25  Me.  567 

(Nov.  6,  1845) 

133,  143 

the  S.  J.  Court 

Opin.  of  the  Justices 

33  Me.  587 

(May  31,  1851) 

100,102,217 

Const'l  Law 

35  Me.  563 

Jan.,  1854 

102,  150 

Statement  of  Facts,  and 

Questions 
Opin.s  of  the  Justices  of 

38  Me.  597 

(Feb. 15, 1855) 

131, 133, 143 

44  Me.  505 

(Mar.  26,  1857) 

143,  150 

the  S.  J.  Court 

Opin.   of  the  Justices  of 

46  Me.  561 

Feb. 1861 

126, 137, 150 

the  S.  J.  Court  on  the 

Constitutionality  of  the 

Personal  Liberty  Laws 

of  the  State  of  Maine 

Opin.  of  the  Justices 

52  Me.  595 

July  2,  1863 

146 

Opin.  of  the  Justices  of 

50  Me.  607 

Dec.  23,  1863 

the  S.  J.  Court 

Opin.  of  the  Justices 

53  Me.  587 

Feb.  18,  1867 

118 

TaxRtion  of  Nat'l  Banks 

53  Me.  594 

Feb.    26— Mar. 
28,  1867 

113,  150 

Opin.  of  the  Justices 

54  Me.  602 

Dec.  10,  1867 

133, 144, 150 

State  V.  Cleveland 

58  Me.  564 

Dec.  1870 

136,     150, 
167,181,225 

Opin.  of  the  Justices 

58  Me.  590 

Feb.  10-13, 1871 

118,     121, 
150,     151, 
194,  206,  225 

Thompson  v.  Pittston 

59  Me.  545 

1871 

235 

Opin.s  of  the  Justices  of 

64  Me.  588 

Nov.  28— Dec. 

41,  133,  144, 

the  S.  J.  Court 

12,  1871 

150 

Allen  V.  Jay 

60  Me.  124 

1872 

235 

Opin.  of  the  Justices  of 

61  Me.  601 

Aug.  10,  1872 

128 

the  S.  J.  Court 

Opin.s  of  the  Justices  of 

62  Me.  596 

July  16,  1874 

125, 128, 150 

the  S.  J.  Court 

Opin.  of  the  Justices  of 

64  Me.  596 

Dec.  6,  1875 

128, 133, 143 

the  S.  J.  Court 

Opin.s  of  the  Justices  of 

68  Me.  582 

Feb.  9,  1876 

110 

the  S.  J.  Court 

Opin.s  of  the  Justices  of 

68  Me.  587 

Dec.  22,  1877 

133,  143 

the  S.  J.  Court 

Opin.s  of  the  Justices  of 

68  Me.  589 

Feb.    19— Mar. 

143,  213 

the  S.  J.  Court 

11,  1878 

Opin.s  of  the  Justices  of 

68  Me.  593 

June  20,  1878 

146,  152 

the  S.  J.  Court 

Opin.s  of  the  Justices  of 

68  Me.  594 

June  20,  1878 

140, 141, 152 

the  S.  J.  Court 

Opin.s  of  the  Justices  of 

69  Me.  585 

126 

the  S.  J.  Court 

Opin.s  of  the  Justices  of 

69  Me.  596 

Mar.  10,  1879 

146 

the  S.  J.  Court 

APPENDIX  IV 


281 


Maine 

Page 

Questions  Submitted,  etc. 

70  Me.  560 

Jan.  3,  1880 

102,     104, 

with  the  Answers  of  the 

133,     143, 

Justices  of  the  S.  J. 

159,  225 

Court 

Statement  and  Questions 

70  Me.  570 

Jan.  16,  1880 

41,  102,  103 

Submitted— with    the 

128,     133, 

Answers  of  the  Justices 

143,     152. 

of  the  S.  J.  Court 

179,210,226 

Statement  and  Questions 

70  Me.  600 

Jan.  17,  1880 

102,     103, 

Submitted  with  An- 

. 

133,     159, 

swers  of  the  Justices  of 

179,    210. 

the  S.  J.  Court 

225,  249 

Question  Submitted— 

72  Me.  542 

Sept.  1,  1881 

132,     150, 

with  Answers  of  the 

171,     194, 

Justices  of  the  S.  J. 

210,  227 

Court 

In  re  State  Bonds 

81  Me.  602 

Apr.  1,  1889 

118 

Donnell  v.  Joy 

85  Me.  119 

235 

Bangor  v.  Frankfort 

85  Me.  128 

235 

Question    Submitted    by 

85  Me.  545 

Sept.  7,  1891 

133,  171 

the  Governor  with  An- 

swers of  the  Justices  of 

the  S.  J.  Court 

In  re  Pardoning  Power  of 

85  Me.  547 

1893 

135 

Governor  and  Council 

Opin.s  of  the  Justices 

95  Me.  564 

Dec.  2,  1901 

101,     103, 
104,     151, 
152,     171, 
172,     194, 
208,213,227 

In  re  Opin,  of  Justices 

97  Me.  590 

July  1,  1903 

121 

In  re  State  Taxation 

97  Me.  595 

July  1,  1903 

111,213 

In  re  Opin.  of  the  Justices 

99  Me.  515 

Feb.  27,  1905 

118,  150 

In  re  R.  R.  Taxation 

102  Me.  527 

Mar.  20,  1907 

111 

In  re  Opin.  of  the  Justices 

103  Me.  506 

Mar.  10,  1908 

104,     122, 
151,     171, 
172,    213, 
214,  227 

In  re  Opin.  of  the  Justices 

108  Me.  545 

Oct.  30,  1911 

Sawyer  v.  Gilmore 

109  Me.  169 

1912 

227,  235 

Laughlin  v.  City  of  Port- 
land 
In  re  Opin.  of  the  Jus- 

111 Me.  486 

Apr.  4,  1914 

227,  235 

114  Me.  557 

Aug.  12,  1915 

134,  144 

tices.     Initiative  and 

Referendum 

282   DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 


Massachusetts 

Page 

Opin,  of  the  Justices 

126  Mass.  547 

Feb.  22, 1781 

33,  34,  118, 
147,     158, 
220,  256 

Opin.  of  the  Justices 

14  Mass.  470 

Nov.  12,  1784 

34,  35,  125 

Opin,  of  the  Justices 

14  Mass.  472 

Nov.,  1787 

34,  35,  125 

Opin.  of  the  Justices 

3  Mass.  567 

May  9,  1791 

34,  107 

Opin.  of  the  Justices 

3  Mass.  568 

Jan.  3,  1807 

34,  40,  143, 

178 

179,  181 

Commonwealth  v.  Smith 

9  Mass.  530 

1810 

Opin.  of  the  Justices 

7  Mass.  523 

Feb.  15, 1811 

100 

Opin.  of  the  Justices 

8  Mass.  548 

1812 

35,  134 

Opin.  of  the  Justices 

15  Mass.  536 

1815 

101,  143 

Opin.  of  the  Justices 

7  Pick.  130n 

May  30,  1825 

35,  166,  183, 
187,     191, 
193,  223 

Opin.  of  the  Justices 

3  Pick.  517 

1826 

101 

Adams  v.  Buckhn 

7  Pick.  125 

Apr.,  1829 

187,223,235 

Opin.  of  the  Justices 

11  Pick.  537 

Feb.  14,  1832 

142 

Opin.  of  the  Justices 

6  Cush.  573 

Jan.  24,  1833 

35,  145 

Opin.  of  the  Justices 

18  Pick.  575 

Mar.  31,  1836 

143 

Opin.  of  the  Justices 

1  Allen  197n 

Oct.  10,  1837 

35,  134 

Opin.  of  the  Justices 

22  Pick.  571 

Oct.  18,  1838 

125,  178 

Opin.  of  the  Justices 

6  Cush.  575 

Mar.  29,  1839 

35,  100 

Opin.  of  the  Justices 

23  Pick.  547 

Feb.  17,  1840 

101,  143 

Opin.  of  the  Justices 

3  Cush.  584 

Apr.  6,  1840 

35,  139,  193 

Opin.  of  the  Justices 

1  Mete.  572 

Mar.  1,  1841 

146,  193 

Opin.  of  the  Justices 

1  Mete.  580 

Mar.  10,  1841 

110,     123, 
142,  193 

Opin.  of  the  Justices 

5  Mete.  587 

Mar.  15,  1843 

110,142,193 

Opin.  of  the  Justices 

5  Mete.  591 

Mar.  9,  1844 

142,     193, 

256 

166,     183, 

Opin.  of  the  Justices 

5  Mete.  596 

Mar.  13,  1844 

187,     193, 

217,  224 

Opin.  of  the  Justices 

3  Cush.  586 

Mar.  14,  1849 

134 

C^in.  of  the  Justices 

6  Cush.  578 

Mar.  28,  1851 

125,  143 

C^in,  of  the  Justices 

9  Cush.  604 

Sept.  20,  1852 

166,     193, 
217,218 

Opin.  of  the  Justices 

11  Cush.  604 

Nov.  17,  1853 

135,  178 

Opin.  of  the  Justices 

3  Gray  601 

July  2,  1855 

128,     129, 
132, 139, 140 

Opin.  of  the  Justices 

8  Gray  20 

Mar.  26,  1857 

193 

Opin.  of  the  Justices 

10  Gray  613 

Mar.  11,  1858 

100 

C^in.  of  the  Justices 

13  Gray  618 

Aug.  20,  1859 

135 

Opin.  of  the  Justices 

14  Gray  614 

Dec.  23,  1859 

125,  136 

Opin.  of  the  Justices 

9  Allen  585 

Nov.  3,  1864 

140. 181, 193 

Green  v.  Commonwealth 

12  Allen  155 

140;     181, 
193,206,224 

Opin.  of  the  Justices 

13  Allen  593 

Jan.  29,  1867 

130,  178 

APPENDIX  IV 


283 


Massachusetts 

Page 

Opin.  of  the  Justices 

99  Mass.  636 

Feb.  25,  1868 

107 

Opin.  of  the  Justices 

107  Mass.  604 

June  29,  1871 

140 

Opin.  of  the  Justices 

115  Mass.  602 

Feb.  20,  1874 

158 

Opin.  of  the  Justices 

117  Mass.  599 

Mar.  5,    1875 

134 

Opin.  of  the  Justices 

117  Mass.  603 

Apr.  20,  1875 

125 

Opin.  of  the  Justices 

120  Mass.  600 

May  23,  1876 

135,  217 

Opin.  of  the  Justices 

122  Mass.  594 

Mar.  7,    1877 

101 

Opin.  of  the  Justices 

122  Mass.  600 

May  14,  1877 

38,  101,  103, 
167,     168, 
170,     171, 
172,     173, 
176,     193, 
209,210,224 

Opin.  of  the  Justices 

124  Mass.  596 

Apr.  8,  1878 

Opin.  of  the  Justices 

126  Mass.  557 

Dec.  31,  1878 

18,  30,  118, 
170,     179, 
191,    206, 
209,    216, 
217,    221, 
256 

Opin.  of  the  Justices 

126  Mass.  603 

Mar.  10,  1879 

129 

Opm.  of  the  Justices 

132  Mass.  600 

Jan.  3,  1882 

134,  193 

Opin.  of  the  Justices 

135  Mass.  594 

June  5,  1883 

107 

Opin.  of  the  Justices 

136  Mass.  578 

Nov.  19,  1883 

128,  132 

Opin.  of  the  Justices 

136  Mass.  583 

Nov.  27,  1883 

134,  144 

Opin.  of  the  Justices 

138  Mass.  601 

Feb.  24,  1885 

125,  193 

Opin.  of  the  Justices 

142  Mass.  601 

May  27,  1886 

100 

Opin.  of  the  Justices  to 

145  Mass.  587 

Sept.  22,  1887 

132,193,215 

the  Governor  and 

Council 

Functions  of  Judiciary 

148  Mass.  623 

May  4,  1889 

159,     170, 
184,     196, 
208,    209, 
224,  236 

Opin.  of  the  Justices 

150  Mass.  586 

Mar.  18,  1890 

132 

In  re  PubUc  Lighting 

150  Mass.  592 

May  28,  1890 

121,  193 

In  re  Power  of  Legislature 

150  Mass.  598 

June  4,  1890 

171, 172, 196 

to  Require  Opinion 

Opin.  of  the  Justices 

154  Mass.  603 

Dec.  31,  1891 

128, 131, 193 

Opin.  of  the  Justices.     In 

155  Mass.  598 

May  7,  1892 

121,  193 

re  HB.  No.  519 

Opin.  of  the  Justices 

157  Mass.  595 

Apr.  28,  1893 

100,  125 

In  re  Municipal  Suffrage 

160  Mass.  586 

Feb.  28,  1894 

144, 149, 150 

to  Women 

Watson  V.  Needham 

161  Mass.  404 

1894 

236 

Citizens'  Gas  Light  Co.  v. 

161  Mass.  432 

1894 

236 

Wakefield 

In  re  HB.  No.  1230 

163  Mass.  589 

May  6,    1895 

123 

In  re  Opin.  of  the  Justices 

165  Mass.  599 

Apr.  25,  1896 

125,  128 

284      DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 


Massachusetts 

Page 

Opin.  of  the  Justices 

166  Mass.  589 

Sept.  26,  1896 

132,  150 

In  re  Opin.  of  the  Justices 

167  Mass.  599 

Feb.  25,  1897 

137 

In  re  Opin.  of  the  Justices 

175  Mass.  599 

June  5,    1900 

114 

In  re  HB.  No.  1291 

178  Mass.  605 

Apr.  25,  1901 

143,  150 

In  re  Municipal  Fuel 

182  Mass.  605 

Jan.  28,  1903 

121,  150 

Plants 

In  re  Bounties  to  Veter- 

186 Mass.  603 

Sept.  21,  1904 

107,     113, 

ans 

114,206 

In  re  Opin.  of  the  Justices 

190  Mass.  605 

Apr.  30,  1906 

117 

In  re  Opin.  of  the  Justices 

190  Mass.  611 

Apr.  30,  1906 

114,     171, 
184,     189, 
206,     207, 
209,     210, 
217,    218, 
224,  236 

In  re  Opin.  of  the  Justices 

190  Mass.  616 

May  29,  1906 

135 

Farwell  v.  Boston 

192  Mass.  15 

1906 

235 

In  re  Opin.  of  the  Justices 

193  Mass.  605 

Apr.  30,  1907 

120, 152, 191 

In  re  Opin.  of  the  Justices 

195  Mass.  607 

Mar.  23,  1908 

110 

Nichols  V.  Election  Com- 

196 Mass.  410 

1907 

235 

missioners 

Opin.  of  the  Justices 

196  Mass.  603 

May  21,  1908 

110,113,152 

In  re  Opin.  of  the  Justices 

201  Mass.  609 

May  18,  1909 

135 

to    the   Governor   and 

Council 

In  re  Opin.  of  the  Justices 

204  Mass.  607 

Mar.  4,    1910 

122 

In  re  Opin.  of  the  Justices 

204  Mass.  616 

Mar.  31,  1910 

122 

In  re  Opin.  of  the  Justices 

207  Mass.  601 

Mar.  10,  1911 

120 

In  re  C^in.  of  the  Justices 

207  Mass.  606 

Apr.  4,    1911 

141 

In  re  Opin.  of  the  Justices 

208  Mass.  603 

Apr.  17,  1911 

122 

In  re  Opin.  of  the  Justices 

208  Mass.  607 

Apr.  17,  1911 

120 

In  re  Opin.  of  the  Justices 

208  Mass.  610 

Apr.  17,  1911 

116,  130 

In  re  Opin.  of  the  Justices 

208  Mass.  614 

Apr.  28,  1911 

107, 109,  209 

to  the  House  of  Repre- 

sentatives 

In  re  Opin.  of  Justices 

208  Mass.  616 

May  15,  1911 

110 

In  re  Opin.  of  Justices 

208  Mass.  619 

May  16,  1911 

123 

In  re  C^in.  of  Justices  to 

Senate 
In  re  Opin.  of  Justices 

208  Mass.  625 

June  13,  1911 

122 

209  Mass.  607 

July  24,  1911 

124,158,219 

In  re  Opin.  of  the  Justices 

210  Mass.  609 

Jan.  12,  1912 

135,  178 

In  re  Opin.  of  the  Justices 

211  Mass.  605 

May  3,  1912 

120 

In  re  Opin.  of  the  Justices 

211  Mass.  608 

May  6,  1912 

114,     150, 
209,  210 

In  re  Opin.  of  the  Justices 

211  Mass.  624 

May  6,  1912 

114,  122 

In  re  C^in.  of  the  Justices 

211  Mass.  618 

May  8,  1912 

124 

In  re  Opin.  of  the  Justices 

211  Mass.  620 

May  27,  1912 

40,  120,  178 

In  re  Opin.  of  the  Justices 

211  Mass.  630 

May  31,  1912 

40,  129,  159, 
178,209,215 

APPENDIX  IV 


285 


Massachusetts 

Page 

In  re  Opin.  of  the  Justices 
In  re  Opin.  of  the  Justices 
In  re  Opin.  of  the  Justices 

Attorney-General  v.  Hav- 
erhill Gas  Light  Co. 
McNichol's  Case 
In  re  Opin.  of  the  Justices 
In  re  Opin.  of  the  Justices 

Young  V.  Duncan 

Woods  V.  Wobum 

In  re  Opin.  of  the  Jus- 
tices.    In  re  Census 

In  re  Opin.  of  the  Jus- 
tices.    In  re  Taxation 

In  re  Opin.  of  the  Justices 

Dinan  v.  Swig 

In  re  Opin.  of  the  Justices 

In  re  Opin.  of  the  Justices 

211  Mass.  632 
214  Mass.  599 

214  Mass.  602 

215  Mass.  394 

215  Mass.  497 

216  Mass.  605 

217  Mass.  607 

218  Mass.  346 
220  Mass.  416 
220  Mass.  609 

220  Mass.  613 

220  Mass.  627 
223  Mass.  516 
115N.  E.921 
115  N.  E.978 

June  21,  1912 
June  2,  1913 
June  10,  1913 

1913 

Mar.  20,  1914 
May,  1914 

1914 
1915 
Apr.,  1915 

Apr.  12,  1915 

May  3,  1915 

1916 

Apr.  16,  1917 

Apr.  23,  1917 

129,  159 
114,  224 
41,  178,  224, 
235,  256 
235 

158 

128,209,210 
111,    171, 
212,  216 
224,  235 
224,  235 
100,  126 

110,  113 

124,  150 
217,235,250 
144,196,212 
120,  188 

Minnesota 

In  the  m.  of  the  Applica- 
tion of  the  Senate 

Rice  V.  Austin 
State  V.  Dike 

10  Minn.  78 

19  Minn.  103 

20  Minn.  363 

1865 

70,  71,    78, 
180,    195, 
250,  257 

71,  138,  180 
71,  138,  180 

Missouri 

Advisory-  Constitutional 
Opinion  of  the  Judges 
of  the  Supreme  Court 

Advisory  Constitutional 
Opinion  of  the  Judges 
of  the  Supreme  Court 

Advisory  Constitutional 
Opinion  of  the  Judges 
of  the  Supreme  Court 

Opin.  of  Court  in  Re- 
sponse to  Governor 

Opin.  of  the  Court  in  Re- 
sponse to  Governor 

In  the  m.  of  the  No.  Mo. 
R.  R. 

37  Mo.  129 
37  Mo.  135     * 

37  Mo.  139 

43  Mo.  351 
49  Mo.  216 
51  Mo.  586 

1865 
1865 

1866 

1869 

Jan.  23,  1872 

1873 

44,114 

44,  45,  121, 
173,     176, 
184,     193, 
197,    203, 
205,    208, 
210,  216 

45,  118,  197 

45,  141 

45,  130,  150, 

175 

45,  119,  173, 

184, 194,  231 

286   DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 


Missouri 

Page 

Opin.  of  Supreme  Court 
Judges  on  Township 
Organization  Law 

Opin.  of  the  Judges  of  the 
Supreme  Court  in  Re- 
sponse to  a  Resolution 
of  the  Senate 

Opin.  of  the  Court  in  Re- 
sponse to  the  Resolu- 
tion of  the  General  As- 
sembly 

In  the  m.  of  Inquiries 
Submitted  by  His  Ex- 
cellency Governor  Silas 
Woodson 

55  Mo.  295 
55  Mo.  215 

55  Mo.  497 

58  Mo.  369 

Feb.  3,  1873 
1874 

Feb.  23,  1874 

1874 

45,  150,  197 
221 

45,  140,  148 

45,  119,  173, 
184, 194,  208 

45,  138,  148, 
184, 193, 197 

Nebraska 

In  re  RR.  Commissioners 

In  re  School  Fund 

In  re  Board  of  Public 
Lands  and  Buildings 
In  re  Babcock 

In  re  State  Warrants 
In  re  Appropriations  for 

Deputies,  etc. 
In  re  Senate  File  31 

In  re  Quaere  of  the  Pro- 
cedure of  the  Two 
Houses 

In  re  House  Roll  284 

Miller  v.  Wheeler 

In  re  Board  of  Purchase 

and  Supplies  for  State 

Institutions 

State  V.  Fleming 

15  Nebr.  679 

15  Nebr.  684 

18  Nebr.  340 

21  Nebr.  500 

25  Nebr.  659 
25  Nebr.  662 

25  Nebr.  864 

31  Nebr.  262 

31  Nebr.  505 

33  Nebr.  765 
37  Nebr.  425 

70  Nebr.  523 

1883 

1883 

1885 

1887 

1889 
1889 

1889 

1891 

Mar.  10,  1891 

1893 

1903 

75,  138,  180, 

206,224,256 

75,  123,  130, 

180 

75,  131,  180 

75,  137,  180, 
201 

75,  180 
75,  115,  137, 
180, 192,  201 
75,  108,  145, 
180,  207 
75,  126,  129, 
180,     191, 
201,  220 

75,  118,  180, 
191,207,219 
76 

76,  78,  137, 
177,    180, 
186,     195, 
201,  206 

76,  250 

New  Hampshire 

Merrill  v.  Sherburne 
Opin.  of  the  Court 

An   Opin.   Delivered   by 
the  Court  in  Pursuance 

1  N.  H.  199 
62  N.  H.  704 

4  N.  H.  565 

Nov.  25,  1816 
(June  25,  1827) 

169 

39,  121,  132, 
183,  203 
110,  126 

APPENDIX  IV 


287 


New  Hampshire 

Page 

of  a  Resolve  of  the 

House  of  Representa- 

tives 

Opinion 

8  N.  H.  573 

June,  1835 

100 

An  Opin.  of  the  Justices 

7  N.  H.  599 

June,  1835 

112,  126 

of  the  Superior  Court 

of  Judicature,  etc. 

Opin.  of  the  Justices  of 

25  N.  H.  537 

Nov.  1852 

112,     121, 

the  Superior  Court  of 

167,    206, 

Judicature,  etc. 

217,220,224 

Judicial  Opinion 

35  N.  H.  579 

Feb.  5,  1858 

107,  149 

Opin.  of  the  Justices  of 

41  N.  H.  550 

June  15,  1860 

141 

the    Supreme    Judicial 

Court 

Opin.  of  the  Justices  of 

41  N.  H.  553 

June,  1861 

112,150,220 

the  Supreme  Judicial 

Court 

Opin.  of  Justices 

44  N.  H.  633 

June  26,  1863 

71,  112,  143 

Opin.  of  the  Justices  of 

45  N.  H.  590 

July  22,  1864 

132 

the    Supreme    Judicial 

Court,  etc. 

Opin.  of  the  Justices  of 

45  N.  H.  593 

July  29,  1864 

217,  219 

the    Supreme    Judicial 

Court,  etc. 

Opin.  of  the  Justices  of 

45  N.  H.  595 

Aug.,  1864 

112,     143, 

the    Supreme    Judicial 

152,  220 

Court,  etc. 

Opinion 

45  N.  H.  607 

Sept.  23,  1864 

107,112,217 

Opin.  of  the  Justices 

53  N.  H.  634 

Mar.  19,  1866 

39,  110,  179, 
216 

Opin.  of  the  Justices 

53  N.  H.  640 

May  28,  1873 

133, 179, 207 

Opin.  of  the  Justices 

52  N.  H.  622 

Aug.  20,  1873 

107, 149, 256 

C^in.  of  the  Justices 

56  N.  H.  570 

June  8,  1875 

101, 103, 134 

Opin.  of  the  Justices 

56  N.  H.  574 

June  8,  1875 

101,     103, 
134,218,250 

Opin.  of  the  Court 

58  N.  H.  621 

Apr.  23,  1877 

134 

0]Din.  of  the  Justices 

62  N.  H.  706 

July  23,  1877 

39,  133,  179 

Opin.  of  the  Court 

58  N.  H.  623 

July  10,  1879 

113,172,220 

Opin.  of  the  Court 

60  N.  H.  585 

June  10,  1881 

126,     150, 
172,    206, 
209,  221 

Opin.  of  the  Justices 

62  N.  H.  706 

Aug.  20,  1883 

128,  133 

Opin,  of  the  Court 

63  N.  H.  625 

July  30,  1885 

106 

In  re  School  Law  Manual 

63  N.  H.  574 

Mar.  12,  1886 

179 

Opin.  of  the  Justices 

76  N.  H.  612 

July  22,  1889 

39,  145 

C^in.  of  the  Justices.     In 

65  N.  H.  673 

Dec,  1889 

re  Chap.  304,  Laws 

1887 

Bingham  v.  Jewett 

66  N.  H.  382 

Jan.  6,  1891 

235 

288   DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 


New  Hampshire 

Page 

In  re  Opin.  of  the  Justices 

66  N.  H.  629 

Mar.  31,  1891 

152,191,220 

Dow  V.  R.  R. 

67  N.  H.  1 

1886 

235 

Opin.  of  the  Justices 

67  N.  H.  601 

Sept.  6,  1892 

146,     172, 
194,  209 

Opin.  of  Justices 

70  N.  H.  638 

Feb.  13,  1899 

126,     137, 
194,217,224 

Amoskeag   Mfg.    Co.   v. 

70  N.  H.  336 

1900 

235 

Manchester 

Opin.  of  the  Justices 

70  N.  H.  640 

(Jan.  3,  1901) 

138,147,213 

Opin.  of  the  Justices 

70  N.  H.  642 

Mar.  6,  1901 

118 

In  re  Probate  Blanks 

71  N.  H.  621 

Mar.  8,  1902 

147,  179 

Opin.  of  the  Justices 

72  N.  H.  601 

Feb.  25,  1903 

137,191,210 

0pm.  of  the  Justices 

72  N.  H.  605 

July  25,  1903 

137,  210 

In  re  Opin.  of  the  Justices 

73  N.  H.  618 

Feb.  20,  1905 

144.216,219 

In  re  Opin.  of  the  Justices 

73  N.  H.  621 

Jan.  2,  1906 

132;     172, 
192,  210 

In  re  Opin.  of  the  Justices 

73  N.  H.  625 

Mar.  13,  1906 

137, 209, 254 

In  re  Opin.  of  Justices 

74  N.  H.  606 

July  19,  1907 

112,     137, 
150,151,209 

Wyatt  V.  State  Board  of 

Equalization 
In  re  Opin.  of  the  Justices 

74  N.  H.  552 

June  2,  1908 

235,  249 

75  N.  H.  613 

Apr.  6,  1909 

128,     172, 

191,194,210 

In  re  Opin.  of  the  Justices 

75  N.  H.  622 

Feb.  1,  1910 

123,  130 

In  re  Opin.  of  Justices 

75  N.  H.  624 

Feb.  1,  1910 

137 

Murchie  v.  Clifford 

76  N.  H.  99 

1911 

235 

In  re  Opin.  of  the  Justices 

76  N.  H.  586 

Feb.  28,  1911 

144 

In  re  Opin.  of  the  Justices 

76  N.  H.  588 

Mar.  6,  1911 

110,     112, 
113,  192 

In  re  Opin.  of  the  Justices 

76  N.  H.  597 

Mar.  20,  1911 

111,     172, 
194,    206, 
209,    219, 
220,  224 

In  re  Opin.  of  the  Justices 

76  N.  H.  601 

Oct.  4,  1911 

107,     130, 
194,  217 

In  re  Opin.  of  the  Justices 

76  N.  H.  609 

Jan.  24,  1913 

112,  113 

French  v.  Lyme 

77  N.  H.  63 

235 

In  re  Opin.  of  the  Justices 

77  N.  H.  606 

Nov.  4,  1914 

137,  191 

In  re  Opin.  of  the  Justices 

77  N.  H.  611 

Mar.  1,  1915 

110,    112, 
113,150,216 

In  re  Opin.  of  the  Justices 

100  Atl.  49 

Feb.  15,  1917 

114 

In  re  Opin.  of  the  Justices 

99  Atl.  999 

Feb.  27,  1917 

125 

New  Jersey 

In  re  "An  Act  to  Amend 

83  N.  J.  L.  303 

Sept.  27,  1912 

93,  109,  180, 

an    Act    Entitled    'An 

191,  225 

Act  Concerning  Public 

Utilities'  " 

APPENDIX  IV 


289 


Page 

New  York 

Livingston  v.   Vanlngen 

9  Johns.  507 

1812 

240 

Gibbons  v.  Ogden 

17  Johns.  488 

1820 

240 

People  V.  Green 

1  Denio.  614 

1845 

66,  136,  180, 
191 

Opin.  of  the  Justices 

Deb.  Mass. 

1846 

66,  126,  145, 

Conv.  1853,  I, 

180,  219, 220 

p.  138 

Matter  of  Madden 

148  N.  Y.  136 

1895 

213,  249 

Matter  of  Emmett 

150  N.  Y.  538 

1896 

249 

Matter  of  Fairchild 

151  N.  Y.  359 

1897 

213,  249 

Matter  of  Norton 

158  N.  Y.  130 

1899 

213,  249 

Cataract   Power   Co.    v. 

115N.Y.Supp. 

1909 

67,  177 

Buffalo 

1045 

North  Carolina 

Opin.  of  the  Justices 

31  N.  C.  App. 

1849 

68,  142,  180, 
191,256 

69,  135,  180, 

In  the  m.  of  Hughes 

61  N.  C.  57 

1866 

249 

Opins.  of  the  Justices  of 

64  N.  C.  785 

1870 

68,  78,  100, 

the  Supreme  Court, 
etc. 

180,  250,  254 

Ohio 

State  V.  Baughman 

38  Ohio  St.  455 

1882 

74,  78,  127, 
177, 180,  249 

Oklahoma 

State  V.  Johnson 

21  Okla.  40 

May  6,  1908 

77,  136,  224 

In  re  Opin.  of  the  Judges 

25  Okla.  76 

Nov.  9,  1909 

77,  136,  250 

Opin.  of  the  Judges 

3  Okla.  Cr.  315 

Dec.  13,  1909 

77,  136,  224 

In  re  Opin.  of  the  .  udges 

4  Oya.  Cr.  594 

Jan.    5,    1911 

77,  136 

In  re  Opin.  of  the  ,  udges 

6  Okla.  Cr.  18 

May  29,  1911 

77,  136,  224 

In  re  Opin.  of  Judges 

6  Okla.  Cr.  210 

Oct.  10,  1911 

77,  136,  224 

In  re  Opin.  of  the  Judges 

8  Okla.  Cr.  467 

Dec.  31,  1912 

78,  136,  181, 
187 

Pennsylvania 

Respublica  v.  DeLong- 

1  Ball.  Ill 

1784 

64,  135,  180, 

champs 

191 

Report  of  the  Judges  of 

3  Binney  595 

1808 

65,  146,  147 

the    Supreme    Court, 
etc. 
Chase  v.  Miller 

180,  224 

Am.  L.  Reg.  1 

> 

72 

(N.  S.)  146 

290      DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 


Rhode  Island 

Page 

Trevett  v.  Weeden 

Thayer,  Cases 
I,  p.  73 

42,  147 

Opin.  of  the  Supreme 

3  R.  I.  299 

June  14,  1854 

42.  126,  141, 

Court 

172 

Taylor  v.  P  lace 

4  R.  I.  324 

169,     206, 
224,249,250 

Opin.  of  the  Judges  of  the 

4  R.  I.  585 

Oct.  24,  1857 

128 

Supreme  Court,  etc. 

Opin.s  of  the  Judges  of 

4  R.  I.  587 

Nov.  23,  1857 

130 

the  Supreme  Court,  etc. 

Opin.s  of  the  Judges  of 

4  R.  I.  588 

Jan.  7,  1858 

130 

the  Supreme  Court,  etc. 

Opin.s  of  the  Judges  of 

4  R.  I.  583 

Feb.  3,  1858 

135 

the  Supreme  Court,  etc. 

Opin.  of  the  Judges  of  the 

5  R.  I.  598 

Oct.  7,  1858 

134 

Supreme  Court,  etc. 

In  re  the  Registry  Laws 

12  R.  I.  580 

Nov.  12,  1877 

142 

In  re  the  Voting  Laws 

12  R.  I.  586 

Mar.  30,  1878 

142 

In  re  the  Polling  Lists 

13  R.  1.  729 

Apr.  13,  1881 

142 

In  re  the  Liquor  Loca- 

13 R.  I.  733 

July  28,  1881 

tions 

In  re  the  Providence  Vo- 

13 R.  I.  737 

Apr.  11,  1882 

142 

ters 
In  re  the  Realty  Voters 

14  R.  I.  645 

Nov.  16,  1882 

142 

In  re  the  Constitutional 

14  R.  I.  649 

Mar.  30,  1883 

126,     145, 

Convention 

219,  220 

In  re  the  Newport  Char- 
ter 
In  re  the  Census  Superin- 

14 R.  I.  655 

Apr.  12,  1883 

142 

15  R.  I.  614 

Apr.  24,  1885 

131 

tendent 

In  re  the  Plurality  Elec- 

15 R.  I.  617 

Feb.  9,  1887 

144 

tions 

In  re  the  Representation 

Vacancy 
In  re   the   Congressional 

15  R.  I.  621 

Feb.  9,  1887 

131 

15  R.  I.  624 

Apr.  7,  1887 

126,  134 

Election 

In   re   the   Investigating 

16  R.  I.  751 

Oct.  5,  1887 

131 

Commission 

In  re  the  Constitutional 

16  R.  I.  754 

Nov.  24,  1888 

142 

Amendment 

In   re   the  Narragansett 

16  R.  I.  761 

Jan.  16,  1889 

144 

Election 

In  re  the  Ballot  Act 

16  R.  I.  766 

Jan.  22,  1890 

143 

In  re  Canvassers'  Powers 

17  R.  I.  809 

Oct.  4,  1890 

142 

In  re  the  Vote  Marks 

17  R.  I.  812 

Oct.  28,  1890 

144 

In  re  the  Agricultural 

17  R.  I.  815 

Dec.  2,  1890 

Fimds 

In  re  Building  Inspectors 

17  R.  I.  819 

Jan.  17,  1891 

In  re  the  Representative 

17  R.  I.  820 

Feb.  6,  1891 

144 

Election 

APPENDIX  IV 


291 


Rhode  Island 

Page 

In  re  the  Ballot  Provision 

17  R.  I.  825 

Mar.  3,  1891 

143 

Opin.  of  the  Justices 

18  R.  I.  824 

1893 

106, 137, 144 

In  re  Qualification  of  Vo- 
ters 
Opin.  of  the  Justices.    In 

19  R.  I.  614 

July  23,  1896 

142 

19  R.  I.  729 

143.  150 

re  Voting  Machine 

Opin.  of  the  Justices 

22  R.  I.  651 

Nov.  21,  1900 

142 

In  re  Police  Commission- 

22 R.  I.  654 

Apr.  30,  1901 

137 

ers 
In  re  Voting  Machines 

23  R.  I.  630 

Oct.  23,  1901 

143 

In  re  Opin.  of  Judges 

23  R.  I.  635 

Feb.  6,  1902 

140 

In  re  Opin.  of  the  Justices 

24  R.  I.  625 

Mar.  20,  1902 

140 

Opin.  to  the  Governor 

24  R.  I.  630 

June  14,  1902 

142 

In  re  Ten  Hour  Law  for 

24  R.  I.  603 

June  27,  1902 

150 

Street  Ry.  Corpora- 

tions 

In  re  Election  of  School 

28  R.  I.  629 

Mar.  2,  1903 

42,144 

Committee  of  City  of 

Woonsocket 

In  re  Abolishing  School 

27  R.  I.  598 

Apr.  10,  1905 

114, 123, 153 

Districts 

In  re  R.  R.  Commissioner 

28  R.  I.  602 

Apr.  1,  1907 

131 

In  re  Decision  of  Justices 

28  R.  I.  607 

Apr.  21,  1908 

132,  150 

(Elections  by   Senate) 

In  re  Opin.  of  Supreme 

29  R.  I.  611 

Feb.  4,  1909 

108,  145 

Court 

In  re  Pothier,  Governor 

31  R.  I.  565 

Dec.  23,  1910 

In  re  Opin.  of  the  Justices 

34  R.  I.  191 

Apr.  17,  1912 

118,122. 

In  re  Opin.  to  Governor 

35  R.  I.  166 

Feb.  24,  1913 

130 

South  Dakota 

In  re  Construction  of 

2S.  D.58 

May  12,  1891 

113,  147 

Revenue  Law 

In  re  Construction  of 

2  S.  D.  71 

May  20,  1891 

123,  147 

School  Law,  Chap.  9, 

Sec.  7 

In  re  Limitation  of  Taxa- 

3 S.  D.  456 

Jan.  14,  1893 

54,  111 

tion 

In  re  Construction  of 

3  S.  D.  548 

Feb.  23,  1893 

46,  107,  186, 

Constitution 

194,     195, 
206 

In  re  Supreme  Court  Va- 

4 S.  D.  532 

Jan.  12,  1894 

131,  140 

cancy 

In  re  State  Warrants 

6S.  D.518 

Feb.  8, 1895 

54,  117,  130, 
219,  220 

In  re  State  Census 

6  S.  D.  540 

Feb.  18,  1895 

54,    55,  126 

In  re  State  Bonds 

7  S.  D.  42 

May  2,  1895 

118,  130 

292   DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 


South  Dakota 

Page 

In  re  Chap.  6,  Sess.  L. 

1890 
In  re  House  Resolution 

No.  30 
In  re  Opin.  of  Judges 
In  re  Opin.  of  the  Judges 

8  S.  D.  274 

10  S.  D.  249 

13  S.  D.  191 
34  S.  D.  650 

Feb.  25,  1896 

Oct.  19,  1897 

Apr.  14,  1900 
May  22,  1914 

54,  129,  176, 

186,  208 

54,  108,  176, 

186,210,232 

138 

54,  111,  176 

192,  232 

Vermont 

Opin.  of  the  Judges  of  the 
Supreme  Court,  etc. 

37  Vt.  665 

Apr.  1,  1864 

73,  143,  180, 
201,  219 

Wisconsin 

State  ex  rel.  Chandler  v. 
Main 

15  la.  340 

72 

Dominion  of  Canada 

The  Bill  to  Incorporate 
the  Christian  Brothers 
Queen  v.  Robertson 

In  re  New  Brunswick 

Penitentiary 
In  re  Canada  Temperance 

Act  of  1878  and  County 

of  Perth 
In  re  Canada  Temperance 

Act  of  1878  and  County 

of  Kent 
The  Thrasher  Case 
The  Manitoba  Ry.  Crot  .- 

ings  Case 
In  re  County  Courts  of 

British  Columbia 
In  re  Certain  Statutes  of 

— Manitoba  Relating 

to  Education 
Brophy  etal.  v.  Attorney- 
General    of    Manitoba 

Cass.  Prac.  59 

6  Can.  S.  C.  R. 

127 

Cameron,  p.  267 

Cass.  Dig.  105 

Cass.  Dig.  106 

Cass.  Dig.  480 
Cameron,  p.  267 

21  Can.  S.  C.  R. 
446 

22  Can.  S.  C.  R. 

577 

(1895)  A.  C.  202 

1876 
1879 
1880 

1892 

Feb.  20,  1894 

1895 

90 
79,  249 

80 
80 

80 

80 
80 

81,  142 

82,  139,  177, 
224 

82 

The  Privy  Council  appeals  from  Canadian  Advisory  Opinions  are  Usted 
under  Canada  rather  than  under  England. 


In  re  Provincial  Jurisdic- 

24 Can.  S.  C.  R. 

Jan.  15, 

1895 

82,  122,  190 

tion  to  Pass  Prohibi- 

170 

tory  Liquor  Laws 

Attorney-General  for  On- 

(1896) A.  C.  348 

1896 

82,  195,  224 

tario  v.  Attorney-Gen- 

eral for  Dominion  et  al. 

APPE^TDIX  IV 


293 


Dominion  of  Canada 

Page 

In  the  matter  of  Jurisdic- 

26 Can.  S.  C.  R. 

Oct.  13,  1896 

83,  122,  224 

tion  over  Provincial 

444 

Fisheries 

Attorney-General  of  Can- 

(1898) A.  C.  700 

May  26,  1898 

84,  184 

ada  V.  Attorneys-Gen- 

eral for  Ontario,  Que- 

bec and  Nova  Scotia 

In  the  m.  of  the  Criminal 

27  Can.  S.  C.  R. 

May  1,  1897 

128 

Code— Relating  to  Big- 

461 

amy 
Union  Colliery  Co.  of 

27  Can.  S.  C.  R. 

Oct.  22,  1897 

91,    92,   93, 

British  Columbia  v. 

637 

125,  225 

Attorney-General  of 

British  Columbia  et  al. 

Attorney-General  of 

33  Can.  S.  C.  R. 

1903 

93 

Canada    v.    Attomey- 

458 

eral  of  Ontario 

In  the  m.  of  the  Represen- 

33 Can.  S.  C.  R. 

Apr.  29,  1903 

104 

tation  in  the  House  of 

475 

Commons,  etc. 

In  the  m.  of  the  Represen- 

33 Can.  S.  C.  R. 

June  8,   1903 

84,  105,  190, 

tation  of  Prince  Edw. 

594 

224 

Island,  etc. 

Attorney-General  for  P. 

(1905)  A.  C.  37 

1905 

E.  I.  V.  Attorney-Gen- 

eral for  Dominion. 

Attorney-General   for 

New  Brimswick  v.  At- 

torney-General   for 

Dominion 

In  the  m.  of  the  Jurisdic- 

35 Can.  S.  C.  R. 

Feb.  27,  1905 

80,  84,  122, 

tion  of  a  Province  to 

581 

125,  177 

Legislate  Respecting 

Abstention  from  Labor 

on  Sunday 

In  re  Ry.  Act  Amend- 

36 Can.  S.  C.  R. 

May  15,  1905 

125 

ment,  1904 

136 

Grand  Trunk  Ry.  Co.  v. 

(1907)  A.  C.  65 

1907 

Attorney-General  of 

Canada 

In   re  International  and 

36  Can.  S.  C.  R. 

May  15,  1905 

122,  139 

Interprovincial  Ferries 

206 

In  re  Guarantee  of  Bonds 

42  Can.  S.  C.  R. 

Dec.  24,  1909 

of  Grand  Trunk  Pacific 

505 

Ry.  Co. 

Grand  Trunk  Pac.  Ry. 

(1912)  A.  C.  204 

1912 

V.  Rex 

In  re  Criminal  Code 

43  Can.  S.  C.  R. 

June  15,  1910 

86,  142,  177, 

434 

187,  225 

294  DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 


Dominion  of  Canada 

Page 

In  re  References  by  the 

43  Can.  S.  C.  R. 

Oct.  11,  1910 

17,  86,  122, 

Governor-General    in 

536 

177,  225 

Council 

Attorney-General  for  On- 

(1912) A.  C.  571 

1912 

5,  6,  17,  18, 

tario  V.  Attorney-Gen- 

25,   30,    87, 

eral  for  Canada 

165,    177, 
190, 195,  225 

Ontario 

Attorney-General  of  On- 

(1894) A.  C.  189 

1894 

92 

tario  V.  Attorney-Gen- 

eral  for   Dominion   of 

Canada 

Attorney-General  for  Do- 

(1898) A.  C.  247 

1898 

92,  133 

minion  V.  Attorney- 

General  for  Ontario 

Attorney-General  for  On- 

(1903) A.  C.  524 

1903 

83,  92,   215 

tario  V.  Hamilton  St. 

Ry.  Co.  et  al. 

In  re  Ontario  Medical 

13  Ont.  L.  R. 

1906 

92,  216,  225 

Act 

501 

APPENDIX  V 

Bibliography 

The  cases  listed  in  Appendix  IV  are,  of  course,  the  basi  for  the  fore- 
going study.  These,  together  with  the  legislative  records  of  a  few  States, 
make  up  practically  all  the  source  material  consulted.  There  is  very  little 
secondary  material  on  the  advisory  opinion — an  essay  by  J.  B.  Thayer, 
and  a  few  articles  and  notes  in  sundry  law  magazines.  Included  with  these 
in  the  Ust  below  are  several  works  of  a  general  nature  to  which  reference 
has  been  made  in  the  text. 

Adams,  John,  The  Life  and  Works  of.     Edition  of  1851. 
Albany  Law  Journal,  XL,  p.  158,  and  LIX,  p.  214. 

American  Law  Review,  XXIV,  p.  369,  XXVIII,  p.  614,  and  XXIX,  p.  711 
American  Year  Book. 

Annals  of  Congress,  and  the  Senate  and  House  Journals  of  various  States. 
Appleton's  Cyclopedia  of  American  Biography. 
Bacon's  Works.     Edition  of  1740. 

Baldwin,  James  F.:  The  King's  Council  During  the  Middle  Ages.     1913. 
Baldwin,  Simeon  E.:  The  American  Judiciary.     1905. 
Beard,  Chas.  A.:  The  Supreme  Court  and  the  Constitution.     1912. 
Bryce,  James:  The  American  Commonwealth.     Edition  of  1888. 
Burgess,  John  W.:  The  ReconciHation  of  Government  with  Liberty.     1915. 
Burnet:  History  of  his  own  Time.     Edition  of  1838. 
Cameron,  E.  R.:  The  Supreme  Court  Act  (Canada)  and  Rules.     1907. 
Coke,  Sir  Edward :  The  Institutes  of  the  Laws  of  England.     Edition  of  1684. 
Colorado,    Encyclopedia   of   Biography  of. 
Cooley,  Thomas  M.:  Principles  of  Constitutional  Law.     Third  Edition. 

1898. 
Cooley,  Thomas  M.:  Constitutional  Limitations.    Sixth  edition.     1890. 
Elliott's  Debates. 

Federalist,  The,  by  Hamilton,  Madison  and  Jay. 
Fortescue,  Sir  John:  The  Governance  of  England.     Plummer's  edition. 

1885. 
Foster:  Crown  Law.  1762. 
Hale,  Matthew:  Jurisprudence. 

Hallam,  Henry:  The  State  of  Europe  During  the  Middle  Ages.    Edition 
of  1853. 


296   DEPARTMENTAL  COOPERATION  IN  STATE  GOVERNMENT 

Hallam,   Henry:  Constitutional   History  of   England.     Edition   of   1854. 
Harvard  Law  Review,  HI,  p.  288;  IV,  p.  37;  X,  p.  50;  XIH,  p.  358;  and 

XXVI,  p.  655. 
Holcombe,  A.  N.:  State  Government  in  the  United  States.     1916. 
Jameson,  John  A.:  Constitutional  Conventions.     Fourth  edition.     1887. 
Jefferson,  Thomas,  The  Writings  of.     Edition  of  1861. 
Macqueen,  John:  The  Appellate  Jurisdiction  of  the  House  of  Lords  and 

Privy  Council.     1842. 
Madison,  James:  Journal  of  the  Federal  Convention.     Edition  of  1894. 
Maine:  Debates,  etc.,  of  Convention  of  1819  for  the  State  of.     Jeremiah 

Perley.     1820. 
Maine  Law  Review. 

Maitland,  F   W.:  Constitutional  History  of  England.     (1888).     1908. 
Marshall,  John:  The  Life  of  George  Washington.     1807. 
Massachusetts:  Journal  Massachusetts  Constitutional  Convention  of  1779- 
80. 

Journal  of  Debates  and  Proceedings  in  the  Constitutional 
Convention  of  1820-21.     Edition  of  1853. 
Debates  and  Proceedings  in  the  Convention  of  1853. 
Judicial   History   of   Massachusetts,     Emory   Washburn. 
Nation,  The:  XLIX,  p.  476,  and  L,  p.  50. 

New  York:  Debates  and  Proceedings  of  the  New  York  Convention  of  1821. 
New  York  State  Constitution  Annotated.     1915. 
Proposed  Amendments  of  the  Constitutional   Convention  of 
the  State  of  New  York.     1915. 
New  York.     E.  H.  Roberts.     1887. 
Pellew,  George:  The  Life  of  John  Jay.     1900. 

Poore,  Ben.  P.:  Constitutions  and  Charters  of  the  United  States.  1878. 
Rodriguez,  Jos6  I.:  American  Constitutions.  1905. 
Rolls  of  Parliament. 

Sparks,  Jared:  The  Writings  of  George  Washington,  1836. 
Statutes  and  Session  Laws  of  the  United  States  and  Various  States,  England, 

The  Dominion  of  Canada  and  the  Canadian  Provinces. 
Story  on  the  Constitution. 

Stubbs,  WilUam:  Constitutional  History  of  England.  1883. 
Thayer,  James  B.:  Cases  on  Constitutional  Law.   1895. 

Legal   Essays. 
Thorpe,  Francis  N.:  Federal  and  State  Constitutions,  1909. 
Tocqueville,  Alexis  de:  Democracy  in  America. 
Walsh,  Correa  M.:  The  Pohtical  Science  of  John  Adams,  1915. 
Whitelocke:  Memorials. 

Willoughby,  W.  W.:  The  Constitutional  Law  of  the  United  States.  1910. 
Year  Books,  The. 


INDEX 


Adams,  John,  responsible  for  introduc- 
tion of  advisory  opinion  in  Massa- 
chusetts, 32-33. 

Adjournment  of  legislature,  no  opinion 
after,  213. 

Advisory  opinion,  history,  1-95;  prac- 
tice, 96-160;  interpretation,  161- 
237;  place  in  modem  state,  248-257. 

Advisory  opinion  in  England  model 
for  advisory  opinion  in  United 
States,  18,  31-32. 

Amici  curiae,  190, 192,  207. 

Appointment  and  removal  of  execu- 
tive officers,  questions  relating  to, 
131-133. 

Appropriations,  questions  relating  to, 
114-117. 

Attempts  to  repeal  advisory  opinion  in 
Massachusetts,  35-38. 

Canada,  history  of  advisory  opinion 
in,  79-90;  interpretation,  177,  195, 
201,  224-225;  text  of  advisory 
opinion  in,  260-261. 

Canadian  Provinces,  history  of  ad- 
visory opinion  in,  90-93;  text  of 
advisory  opinion  in,  261-266. 

Careless  reporting  of  advisory  opin- 
ions, 34-35,  39,  41,  52. 

Case,  meaning  of,  in  United  States 
courts,  61-62. 

Colombia,  history  of  advisory  opinion 
in,  94,  245 ;  judicial  participation  in 
legislation  m,  94,  243-244;  text  of 
advisory  opinion  in,  267. 

Colorado,  history  of  advisory  opinion 
in,  48-53;  source  of  interrogations  in 
97-99;  interpretation,  174-175,  184- 
186,  187-189,  197-201,  202-205, 
210-213,  216,  217-218,  221-222, 
228-231;  judicial  reconmaendations 
to  legislature,  242;  text  of  advisory 
opinion  in,  259, 


Composition  and  organization  of  exe- 
cutive department,  questions  re- 
lating to,  128-129. 

Composition  of  legislature,  questions 
relating  to,  100-104. 

Connecticut,  history  of  advisory  opin- 
ion in,  71-72. 

Constitutional  questions,  limitation  of 
advisory  opinion  to,  in  Missouri, 
43,  196-197;  in  Florida,  47,  196-197. 

Council  of  revision,  238-240. 

Counsel,  lack  of  assistance  of,  29,  76, 
81,  190-192,  206-207. 

Court,  not  justices,  to  give  advisory 
opinions  in  Colorado,  51-52,  148, 
221-222. 

Court  of  claims,  62-64. 

Criminal  cases,  judicial  advice  in,  in 
New  York,  65-66;  in  Oklahoma,  76- 
78. 

Criminal  law,  questions  relating  to 
execution  of,  135-136. 

Delaware,  history  of  advisory  opinion 
in,  69. 

Desirability  of  advisory  opinion,  248- 
257. 

Ecuador,  judicial  initiation  ot  legisla- 
tion in,  243. 

Education,  questions  relating  to,  122- 
123. 

Effect  of  advisory  opinions,  in  Massa- 
chusetts, 38-39,  158-159;  in  Colo- 
rado, 115-116,  154-158;  upon  in- 
terrogators generally,  153-160,  234- 
235. 

Electoral  duties  of  executive,  ques- 
tions relating  to,  133-134. 

Eminent  domain,  questions  relating 
to,  122. 

England,  history  of  advisory  opinion 
in,  1-30. 

Executive  questions  referred,  128-139. 


297 


298 


INDEX 


Existing  statutes,  constniction  of,  in 
advisory  opinions,  45,  76,  109,  193- 
202. 

Ex  parte  objection,  106,  182-192. 

Extra-judicial  consultation  in  the 
United  States,  under  a  constitu- 
tional clause,  30-55,  178-179;  when 
not  authorized  by  the  constitution 
55-78,  176-177,  179-180. ^ 

Fact,  questions  of,  no  advisory  opin- 
ion on,  217-218. 

Financial  administration,  questions 
relating  to,  129-131. 

Financial  powers  and  duties  of  legis- 
lature, questions  relating  to,  110- 
120. 

Florida,  history  of  advisory  opinion 
in,  46-48;  interpretation,  173-174, 
224;  text  of  advisory  opinion  in, 
259. 

Form  of  advisory  opinions,  per  curiam 
in  Colorado,  52,  147-148,  222;  gen- 
erally, 146-153. 

Future  action,  no  opinion  unless  possi- 
bility of,  103-104,  208-214. 

Governor  alone  can  consult  judges,  in 
Florida,  46,  174;  in  South  Dakota, 
54. 

Guatemala,  judicial  initiation  of  legis- 
lation in,  243. 

Hawaii,  history  of  advisory  opinion  in, 
93-94. 

History  of  advisory  opinion,  in  Eng- 
land, 1-30;  in  the  United  States, 
30-78 ;  in  Canada,  79-93 ;  in  Hawaii, 
94;  in  Colomb'a,  95;  in  Panama,  95. 
For  different  States  of  United 
States,  see  under  name  of  each 
State. 

Honduras,  judicial  participation  in 
legislation  in,  94-95,  243-244;  text, 
267. 

House  of  Lords  in  England,  right  to 
consult  judges  in  its  judicial  capa- 
city, 18-25,  246;  in  its  legislative 
capacity,  25-30. 

lUinois,  attitude  toward  advisory 
opinion  in,  69-70;  revisory  council 
in,  240. 

Impeachments,  assistance  of  judges 
in,  246-247. 


Important  question  and  solemn  occa- 
sion clause,  basis  in  English  prac- 
tice, 16,  32;  not  in  Rhode  Island, 
42;  narrow  form  in  Missouri,  43-45; 
in  Colorado,  52;  in  South  Dakota, 
54;  in  Canada,  81;  interpretation 
of.  Ill,  167-168,207-208. 

Individual  opinions  of  justices  should 
be  given  in  general,  149-151,  221- 
222. 

Interpretation  of  advisory  opinion 
clause,  in  Missouri,  44-45 ;  generally, 
161-237. 

Judges  in  England,  duty  to  advise 
king  in  his  judicial  capacity,  2-6; 
duty  to  advise  king  in  his  executive 
capacity,  6-18;  duty  to  advise  House 
of  Lords  in  its  judicial  capacity,  18- 
25;  duty  to  advise  House  of  Lords 
in  its  legislative  capacity,  25-30. 

Judicial  Committee  of  Privy  Council, 
advisor}'^  nature  of,  5-6,  17. 

Judicial  discretion  to  refuse  opinions, 
161-177. 

Judicial  nature  of  questions  referred, 
205-206. 

Judicial  notice  of  facts  not  stated  in 
reference,  218-219. 

Judicial  participation  in  legislation, 
in  Colombia,  94;  in  Salvador,  94- 
95;  in  Honduras,  94-95;  in  Nicara- 
gua, 94-95. 

Judicial  recommendations  to  legisla- 
tures, in  United  States,  241-242; 
in  Venezuela,  242;  in  Panama,  242. 

Judiciary,  questions  relating  to,  re- 
ferred for  advisory  opinions,  139- 
142. 

Kentucky,  history  of  advisory  opinion 
in,  73-74. 

King  of  England,  right  to  consult 
judges  in  his  judicial  capacity,  2-6; 
in  his  executive  capacity,  6-18. 

Labor,  questions  relating  to,  123-125. 

Legal  force  of  advisory  opinions,  in 
early  English  practice,  14-16,  223; 
to  House  of  Lords,  23-24,  223;  in 
Oklahoma,  77,  224;  in  Canada,  81, 
83,  91,  224-225;  in  Maine,  225-227; 
in  Colorado,  228-231;  generally, 
223-227. 


INDEX 


299 


Legislative  questions  referred,  100- 
128. 

Maine,  history  of  advisory  opinion  in, 
40-41;  interpretation,  171-172,  194, 
201,  213,  225-227;  text  of  advisory 
opinion  in,  258. 

Majority  opinions,  150-152. 

Massachusetts,  history  of  advisory 
opinion  in,  30-39;  interpretation, 
166,  167-171,  178-179,  183-184,  193, 
201,  205-206,  209,  215-216,  218,  221, 
223-224;  text  of  advisor>'  opinion 
in,  258. 

Military  questions  referred,  134. 

Minnesota,  history  of  advisory  opin- 
ion in,  70-71. 

Miscellaneous  questions  referred  for 
advisory  opinions,  145-146. 

Missouri,  history  of  advisory  opinion 
in,  43-46;  interpretation,  44-45,  173, 
184,  203,  205,  216,  221,  231-232; 
text  of  advisory  opinion  in,  258. 

Nature  of  questions,  99-146. 

Nebraska,  history  of  advisory  opinion 
in,  74-76. 

Nicaragua,  judicial  participation  in 
legislation  in,  94-95,  243-244;  text, 
267. 

North  Carolina,  history  of  advisory 
opinion  in,  68-69;  practice,  191. 

New  Hampshire,  history  of  advisory 
opinion  in,  39-40;  interpretation, 
172,  179,  183,  191,  194,  201,  203, 
206.  209-210,  213,  218,  221,  224; 
assistance  of  judges  in  impeach- 
ments, 246;  text  of  advisory  opin- 
ion in,  258. 

New  Jersey,  extra-constitutional  con- 
sultation of  judges  in,  109,  191. 

New  York,  history  of  advisory  opin- 
ion in,  65-68 ;  council  of  revision  in, 
238-240;  assistance  of  judges  in  im- 
peachments, 247. 

ObUgation  of  judges  to  give  advisory 
opinions,  161-177. 

Ohio,  history  of  advisory  opinion  in, 
74. 

Oklahoma,  history  of  advisory  opin- 
ion in,  76-78;  practice,  224. 

Organization  and  procedure  of  legis- 
lature, questions  relating  to,  105- 
109. 


Panama,  history  of  advisory  opinion 
in,  95,  245;  judicial  recommenda- 
tions to  legislature  in,  242;  text  of 
advisory  opinion  in,  267. 

Pending  cases,  opinions  relating  to,  in 
early  English  practice,  9-14;  in  the 
United  States,  180-181. 

Pending  legislation,  advisory  opinions 
relating  to,  in  Colorado,  49-50, 
210-212;  in  Canada,  84-85;  in  New 
Hampshire,  112. 

Pennsylvania,  history  of  advisory 
opinion  in,  64-65;  assistance  of 
judges  in  impeachments  in,  247. 

Per  curiam  replies,  in  Colorado,  52, 
147-148,  222;  generally,  148-149. 

Peru,  judicial  initiation  of  legislation 
in,  243. 

Police  power  of  legislature,  questions 
relating  to,  120-122. 

Possibility  of  future  cases  no  reason 
for  refusing  opinions,  181-205. 

Precedents,  force  of  advisory  opinions 
as  judicial,  in  Colorado,  51-52,  228- 
231;  in  Canada,  83,  224-225;  in 
Maine,  225-227;  generaUy,  223-227. 

Private  rights,  advisory  opinions 
should  not  affect,  106,  180-181,  182- 
202. 

PubUcation  of  advisory  opinions  re- 
quired, in  Missouri,  43-44,  146;  in 
Colorado,  52, 146. 

Pubhci  juris  questions,  202-205. 

Quality  of  advisory  opinions,  153-154, 
234,  255-256. 

Questions  of  too  general  nature,  no 
obHgation  to  answer,  29,  215-217. 

Revisory  coundl,  in  federal  conven- 
tion of  1787,  55-57,  240;  in  New 
York,  238-240;  in  lUinois,  240. 

Rhode  Island,  history  of  advisory 
opinion  in,  41-43;  interpretation, 
172-173,  201,  224;  text  of  advisory 
opinion  in,  258. 

Right  of  judges  to  refuse  opinions, 
161-177. 

Salvador,  judicial  parricipation  in  leg- 
islation in,  94-95,  243-244;  text,  267. 

San  Domingo,  judicial  mitiation  of 
legislation  in,  243. 


300 


INDEX 


Separation  of  powers  theory  in  rela- 
tion to  advisory  opinion,  33, 37, 162, 
168-169,  248,  251. 

Source  of  interrogations,  96-99. 

South  Dakota,  history  of  advisory 
opinion  in,  54-55;  interpretation, 
175-176,  201,  232;  text  of  advisory 
opinion  in,  259. 

Success  of  advisory  opinion,  in  Massa- 
chusetts, 38-39;  in  New  Hampshire, 
40;  in  Rhode  Island,  43;  in  Colora- 
do, 52-53;  in  South  Dakota,  54-55. 

Suffrage  and  elections,  questions  re- 
lating to,  142-145. 


Taxation,  questions  relating  to,  110- 

114. 
Time,  lack  of,  as  excuse  for  no  opinion, 

112-113,  219-221. 
United    States,    history   of   advisory 

opinion    in,    30-78;    extra-judicial 

consultation  of  judges  in  the  federal 

government,  55-64. 
Venezuela,  judicial  recommendations 

to  legislature  in,  242. 
Vermont,  history  of  advisory  opinion 

in,  72-73;  assistance  of  judges  in 

impeachments  in,  247. 
Writing,   requirement   that   advisory 

opinions  be  in,  42,  146 


T^HE  following  pages  contain  advertisements  of  a 
few  of  the  Macmillan  books  on  kindred  subjects. 


The  American  Doctrine  of  Judicial 
Supremacy 

By  CHARLES  GROVE  HAINES 
Professor  of  Political  Science  in  the  University  of  Texas 

368  pp.,  Cloth,  72°,  $2.00 

An  account  of  the  origin  and  development  of  the  practice  of  judicial 
control  over  legislation  in  the  United  States.  Data  from  many  sources 
relative  to  the  theory  and  practice  of  judicial  review  of  legislation  are 
brought  within  brief  compass. 

The  Supreme  Court  and  the  Constitution 

By  CHARLES  A.  BEARD 

127  pp.,  Cloth,  12\  $1.00 

After  an  examination  of  the  writings  of  Colonial  days  and  an  analysis 
of  the  "Spirit  of  the  Constitution"  the  writer  derives  his  conclusion  that 
the  framers  of  the  Constitution  intended  that  the  Supreme  Court  should 
pass  upon  the  constitutionaUty  of  the  acts  of  Congress. 

The  New  American  Government  and 
Its  Work 

By  JAMES  T.  YOUNG 
Professor  of  Public  Administration  in  the  University  of  Pennsylvania 

663  pp.,  Cloth,  Crown  Octavo,  $2.25 

A  discussion  not  only  of  the  political  form  and  structure  of  our  gov- 
ernment, but  more  especially  of  what  the  government  is  actually  doing.  It 
points  out  particularly  the  fact  that  our  governmental  forms  and  practices 
are  not  static,  but  are  constantly  developing. 


THE  MACMILLAN  COMPANY 

Publishers         64-66  Fifth  Avenue        New  York 


American  Government  and  Politics 

By  CHARLES  A.  BEARD 

772  pp.,  Cloth,  Crown  Octavo,  $2.25 

Gives  equal  space  to  federal  and  state  government.  Throughout  the 
volume  emphasis  is  laid  upon  the  evolution  of  political  issues  and  the  de- 
velopment of  party  machinery. 

Introduction  to  the  Study  of  Government 

By  LIEUTENANT-COLONEL  L.  H.  HOLT 
Professor  of  English  and  History  in  the  United  States  MiUtary  Academy 

388  pp.,  Cloth,  Crcmn  Octavo,  $2.00 

A  concise  statement  of  the  nature,  organization  and  operation  of  gov- 
ernment as  it  exists  in  the  foremost  states  of  the  modern  world. 

The  American  Commonwealth 

By  JAMES  BRYCE 

III  two  volumes,  $4.00.    Abridged  edition,  $1.75 

A  broad  critical,  sympathetic  examination  of  the  plain  facts  of  our 
national  and  local  life. 


THE  MACMILLAN  COMPANY 

Publishers        64-66  Fifth  Avenue        New  York 


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